LOAN AGREEMENT
Exhibit 10.3
THIS LOAN AGREEMENT (this “Agreement”) is made as of this
15th day of June, 2007, by and between BRANCH BANKING AND TRUST COMPANY (the “Lender” or “Bank”), and CUISINE SOLUTIONS, INC., a Delaware corporation (the “Borrower”); witnesseth:
The Borrower has applied to the Lender for a conditional line of credit loan in the maximum
principal amount permitted to be outstanding at any one time of SIX MILLION AND NO/100 DOLLARS
($6,000,000.00), and the Lender is willing to accommodate the Borrower upon and subject to the
terms, conditions, and provisions of this Agreement.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree as follows:
SECTION 1. Definitions
All accounting terms not specifically defined herein shall have the meanings assigned to them
as determined by generally acceptable accounting principles, consistently applied. Unless the context otherwise requires, when used herein, the following terms shall have
the following meanings:
1.1. “Advance” means the disbursement or advance of proceeds made by Lender on account of
a Line of Credit Loan pursuant to or as authorized under the terms hereof, each such advance
being call an “Advance” and, collectively, the “Advances.”
1.2. “Business Day” shall mean a day other than a Saturday, Sunday or other day on which
commercial banks in the State of Maryland are authorized by law to close.
1.3. “Committed Amount” means the amount of the Lender’s conditional commitment for Line of
Credit Loans as set forth in Section 2.01 hereof.
1.4. “Events of Default” means those events set forth in Section 6 hereof.
1.5. “Expense Payment” means a payment advanced by the Lender pursuant to the provisions of
Section 7.5 hereof, each such payment being called an “Expense Payment” and collectively the
“Expense Payments.”
Loan No.
1.6. “Liabilities” means the obligations of the Borrower to pay (a) the unpaid principal
amount of the Note, plus all accrued and unpaid interest thereon, (b) all unpaid Expense Payments,
(c) all unpaid Liquidation Costs, and (d) all other charges, interest and expenses chargeable by
the Lender to the Borrower under this Agreement and the other Loan Documents.
1.7. “Lien” means any mortgage, deed of trust, pledge, security interest, assignment,
encumbrance, lien, or charge of any kind, including, without limitation, any conditional sale or
other title retention agreement, any lease in the nature thereof, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code of any jurisdiction.
1.8. “Line of Credit” means the line of credit in the maximum principal amount permitted to be
at any one time outstanding of SIX MILLION AND NO/100 DOLLARS ($6,000,000.00), to be established by
the Lender in favor of the Borrower pursuant to the terms and conditions of this Agreement.
1.9. “Line of Credit Loans” means the loans by the Lender to the Borrower pursuant to the
provisions of Section 2.1 hereof, each such loan being called a “Line of Credit Loan” and,
collectively, the “Line of Credit Loans.”
1.10. “Liquidation Costs” means all reasonable expenses, charges, costs and fees (including,
without limitation, reasonable attorneys’ fees and expenses) of any nature whatsoever paid or
incurred by or on behalf of the Lender in connection with (a) the collection or enforcement of any of the Liabilities and (b) the enforcement of any of the Loan Documents.
1.11. “Loan Documents” means collectively the Note, each Letter of Credit Agreement executed
by the Borrower, the Credit Line Deed of Trust and Security Agreement given by FOOD INVESTORS
CORPORATION, a Delaware corporation, securing the Note, this Agreement, and any other letter of
credit application and/or agreement, instrument, document, and agreement now and hereafter
evidencing, securing, guarantying, indemnifying, and given by the Borrower in connection with the
Line of Credit or any of the other Liabilities (including those documents set forth in Section 3
hereof) and any and all amendments thereto and modifications thereof.
1.12. “Note” means that Deed of Trust Note (Secured Revolving Line of Credit) described in
Section 2.4 hereof and any and all amendments thereto and modifications thereof.
1.13. “Person” includes a corporation, an association, a partnership, an organization, a
business, an individual, or a government or political subdivision thereof or governmental agency.
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1.14. “Taxes” means all taxes and assessments whether general or special, ordinary or
extraordinary, or foreseen or unforeseen, of every character (including all penalties or interest
thereon), which at any time may be assessed, levied, confirmed, or imposed on the Borrower or any
of its properties or assets or any part thereof or in respect of any of its franchises, businesses,
income, or profits, and all claims for sums which by law have or might become a lien or charge upon
any of its properties or assets.
SECTION 2. Line of Credit in Favor of the Borrower
2.1. Advised Line of Credit Commitment; Fees. Subject to, and in accordance with the terms,
conditions and provisions of this Agreement, the Lender agrees to make loans (singly a “Line of
Credit Loan” and collectively, the “Line of Credit Loans”) from time to time to the Borrower from
the date hereof until the earlier to occur of (a) the date which is thirty six (36) months
following the date hereof, (the “Scheduled Maturity Date”) or (b) the date the Lender terminates
the Line of Credit pursuant to the provisions of Section 7.1 hereof, in the aggregate principal
amount at any one time outstanding up to but not exceeding the amount of SIX MILLION AND NO/100
DOLLARS ($6,000,000.00) (the “Committed Amount”). Within such limit, and subject to such additional
restrictions as are set forth herein, the Borrower may borrow, repay, and re-borrow hereunder at
any time and from time to time from the date of this Agreement until the earlier to occur of (a)
the Scheduled Maturity Date, or (b) the date the Lender terminates the Line of Credit pursuant to
the provisions of Section 7.1 hereof. Notwithstanding any provision herein to the contrary,
availability in the amount of $750,000.00 shall be reserved in the Loan so long as the $750,000.00
letter of credit given for the benefit of Xxxx Xxxxxxx LLC is outstanding.
2.2. Manner of Borrowing and Disbursement of Line of Credit Loans. Each Advance on account of
a Line of Credit Loan shall be made by the Lender to the Borrower no more than on the fifth (5th)
business day on which Lender actually receives written notice from the Borrower setting forth the
amount of such Line of Credit Loan, provided, that, such written notice is actually received by
Lender before 12:00 Noon Eastern Time (Standard or Daylight as then applicable) on such business
day, or on such later date set forth in Borrower’s notice. Prior to making any advances hereunder,
the Lender will require the Borrower to submit to the Lender for its approval, a written statement
of the purpose of such advance, together with a statement of the contemplated source of repayment
of the same. Notwithstanding any other provision contained herein or in the Note, the Lender
reserves the right to deny funding for any such request in the exercise of its sole discretion.
Each Advance on account of a Line of Credit Loan shall be credited to a banking account of the
Borrower with the Lender or disbursed as otherwise
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instructed by Borrower in its notice requesting such Line of Credit Loan. With respect to the
Line of Credit Loans and all matters and transactions in connection therewith, the Borrower hereby
irrevocably authorizes the Lender to accept, rely upon, act upon, and comply with any written
instructions, requests, confirmations, and orders from Borrower. The Borrower acknowledges that the
transmission between the Borrower and the Lender of any such instructions, requests, confirmations,
and orders involves the possibility of errors, omissions, mistakes, and discrepancies and agrees to
adopt such internal measures and operational procedures to protect its interests. By reason
thereof, the Borrower hereby assumes all risk of loss and responsibility for, releases, and
discharges the Lender from any and all responsibility or liability for, and agrees to indemnify,
reimburse on demand, and hold the Lender harmless from, any and all claims, actions, damages,
losses, liability, and expenses by reason of, arising out of or in any way connected with or
related to (a) the Lender’s accepting, relying and acting upon, complying with, or observing any
such instructions, requests, confirmations, or orders, and (b) any such errors, omissions,
mistakes, and discrepancies; provided, that, the foregoing release and indemnification shall not
apply to matters attributable to Lender’s gross negligence or intentional willful misconduct.
2.3. The Account. The Lender shall establish and maintain an account on the books of the
Lender evidencing the indebtedness of the Borrower to the Lender under the provisions of this
Agreement to which (a) the amount of each Line of Credit Loan made by the Lender shall be debited
by recording therein on the date of each Line of Credit Loan a debit entry in the amount of the
Line of Credit Loan, (b) each payment on a Line of Credit Loan made by the Borrower shall be
credited by recording therein on the date received a credit entry in the amount of such payment,
(c) all interest on the Line of Credit Loans not paid as and when due and payable shall be debited
by recording therein on the date such interest becomes past due a debit entry in the amount of such
interest, (d) all payments due on account of a letter of credit issued in accordance herewith not
paid as and when due and payable shall be debited by recording therein on the date such payment
becomes past due a debit entry in the amount of such payment, (e) all Expense Payments not paid as
and when due and payable shall be debited by recording therein on the date such Expense Payment
becomes due a debit entry in the amount of such Expense Payment, (f) all Liquidation Costs shall be
debited by recording therein on the date incurred the amount of such Liquidation Costs, and (g) all
other charges, interest, and expenses chargeable by the Lender to the Borrower under this Agreement
not paid as and when due and payable shall be debited by recording therein on the date such
charges, interest, and expenses become past due a debit entry in the amount of such charges,
interest, and expenses. All credit entries to such account are conditional and shall be readjusted
as of the date
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made if final payment is not received by the Lender in cash or solvent credits. The entries made by
the Lender to such account shall constitute prima facie evidence of the existence and amounts of
the Borrower’s indebtedness to the Lender under the provisions of this Agreement.
2.4. Note. The Line of Credit shall be evidenced by and repaid in accordance with the terms of
the Borrower’s Deed of Trust Note (Secured Revolving Line of Credit) to the Lender, in form and
content satisfactory to the Lender, dated of even date herewith, duly executed by the Borrower, and
in the face amount of the Committed Amount (together with all modifications, renewals and
extensions thereof and substitutions and replacements therefor, the “Note”).
SECTION 3. Conditions of Lending
Conditions Precedent to the Line of Credit. The obligation of the Lender to establish
the Line of Credit is subject to the following express conditions precedent:
A. Loan Documents. The Borrower shall have delivered to the Lender the following:
1. Note. The executed Note;
2. Corporate Resolutions. The Certificate of Corporate Resolution for the Borrower, and the
Pledge Resolution for FOOD INVESTORS CORPORATION, a Delaware corporation.
3. Deed of Trust. . The Credit Line Deed of Trust and Security Agreement dated of even
date herewith given by FOOD INVESTORS CORPORATION, a Delaware corporation, to secure the
Note, and all modifications and amendments thereto.
4. Security Agreement. The Security Agreement by and between the Borrower and the Lender dated
of even date herewith, and all modifications and amendments thereto.
5. Miscellaneous. Such other documents, instruments, opinions, and agreements as the Lender
and its counsel may require in their discretion.
B. Lender’s Counsel. All legal matters incident to this Agreement shall be satisfactory to
counsel for the Lender, and the Borrower shall have reimbursed the Lender for the fees and expenses
of Lender’s counsel in connection with the preparation of this Agreement and all matters incident
thereto.
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SECTION 4. Representations and Warranties
To induce the Lender to establish the Line of Credit hereunder, the Borrower hereby
represents and warrants to the Lender:
4.1. Binding Agreement. This Agreement constitutes, and the Note and the other Loan Documents
constitute or will constitute, when issued and delivered, the valid and legally binding obligations
of the Borrower enforceable in accordance with their respective terms.
4.2. Litigation. Other than as disclosed to the Lender in writing, there is no claim,
litigation or proceeding, or investigation pending, or, to the best of Borrower’s knowledge,
threatened against Borrower, its properties or business, this Agreement, any of the other Loan
Documents, or any of the transactions contemplated hereby or thereby, before or by any court,
tribunal, arbitrator, or governmental authority.
4.3. No Conflicting Agreements. There are no provisions of any existing mortgage, deed of
trust, indenture, contract, lease, or agreement binding on the Borrower or affecting its property
which would conflict with or in any way prevent the execution, delivery, or carrying out of the
terms of this Agreement, the Note, or the other Loan Documents. The execution, delivery, and
performance of the Loan Documents will not result in the creation, imposition or acceleration of
any indebtedness or any mortgage, pledge, lien, charge, reservation, covenant, restriction,
security interest, or other encumbrance of any nature upon, or with respect to, Borrower or any of
their properties.
4.4. Financial Condition. The Borrower’s financial statements, copies of which have been
furnished to the Lender, were prepared in accordance with generally accepted accounting principles
consistently applied and are complete and correct and fairly and accurately present the financial
condition of the Borrower as of their respective dates. There has been no change in the business,
operations or condition (financial or otherwise) of the Borrower, or any other event, since the
date of such financial statements which might adversely affect the ability of Borrower to perform
or comply with all terms, conditions, and agreements to be performed or complied with by Borrower
under this Agreement or under any of the other Loan Documents, or to perform the transactions
contemplated hereby and thereby. No material additional liabilities have been incurred by the
Borrower since the date of such financial statements other than the borrowing contemplated herein
or as approved in writing by the Lender.
4.5. Information. All statements made by Borrower or any person authorized to act on
Borrower’s behalf and contained
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in any financial statement, application, schedule, report, certificate,
opinion, or any other document given by the Borrower or any person authorized to
act on Borrower’s behalf in connection with the Line of Credit or with any of the
Loan Documents are in all material respects true and accurate, and the Borrower or
such other person has not omitted to state any material fact or any fact necessary
to make such information not misleading.
4.6. Assets and Properties. The Borrower has good, valid and merchantable
title to all of their assets and properties and, there are no Liens outstanding
against any of these assets and properties which have a material adverse effect
on Borrower’s financial condition, except as disclosed or
reflected in Borrower’s financial statements submitted to the
Lender prior to the date hereof.
4.7. Taxes. Borrower has filed all tax returns and reports required by any
governmental authority to be filed by Borrower, and such returns and reports are
true and correct. All Taxes imposed upon the Borrower and their properties and
income have been paid and discharged prior to the date when any interest or penalty
would accrue for the nonpayment thereof except for those Taxes being contested in
good faith and by appropriate proceedings by the Borrower.
4.8. Licenses and Contracts. To the best of Borrower’s knowledge all
franchises, licenses, permits, certificates, consents, approvals, authorizations,
agreements, and contracts necessary to operate Borrower’s business as it currently
is being operated have been obtained, are in effect, and are free from challenge.
4.9. Margin Stock. The Borrower has no present intention of acquiring any
“margin stock” within the meaning of Regulation G (12 C.F.R. 207) or within the
meaning of Regulation U (12 C.F.R. 221) of the Board of Governors of the Federal
Reserve System. None of the proceeds of the Line of Credit will be used, directly
or indirectly, by the Borrower for the purpose of purchasing or carrying, or for
the purpose of reducing or retiring any indebtedness which was originally incurred
to purchase or carry, any margin stock or for any other purpose which might
constitute the transactions contemplated hereby a “purpose credit” within the
meaning of Regulation G or Regulation U, or cause this Agreement to violate
Regulation G, U, T or any other regulation of the Board of Governors of the Federal
Reserve System or the Securities Exchange Act of 1934 or the Small Business
Investment Act of 1958, as amended, or any rules or regulations promulgated under
any of such statutes.
4.10. Violation of Laws, etc. Neither the consummation by Borrower of the Line
of Credit nor the use, directly or indirectly, of all or any portion of the
proceeds of the Line of
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Credit hereunder will, to the best of the Borrower’s knowledge, violate or result in a violation of
any provision of any applicable statute, regulation or order of, or any restriction imposed by, the
United States of America or by any authorized official, board, department, instrumentality, or
agency thereof relating to the control of foreign or overseas lending or investment as applicable
to Borrower.
4.11. The proceeds of the Line of Credit shall be used solely for the carrying on of a
business or commercial enterprise.
4.12. No Default. No Event of Default (as defined in Section 6), and no event which with
notice, lapse of time or other condition would constitute an Event of Default, has occurred.
SECTION 5. Borrower’s Covenants
Until payment in full of all of the Liabilities:
5.1. Payment of Note. Borrower shall punctually pay the principal of and all interest due on
the Note at the time and place and in the manner specified therein.
5.2. Use of Line of Credit Proceeds. The Borrower will use the proceeds of the Line of Credit
(i) only for business and for no other purposes, (ii) for Borrower’s operational expenses, and
(iii) for the purchase of equipment or other fixed assets; provided, however, that any Line of
Credit Loan in excess of $1,000,000.00 used for the purchase of fixed assets shall be refinanced or
repaid in full within twelve (12) months of the date of such Line of Credit Loan.
5.3. Financials. The Borrower will furnish to the Lender financial statements of the Borrower
in accordance with the terms of the Note.
5.4. Other Information. The Borrower will furnish to the Lender, promptly from time to time,
such information concerning the operations, business, affairs, and financial condition of the
Borrower as the Lender may reasonably request.
5.5. Litigation. The Borrower will promptly notify the Lender of any litigation instituted or
threatened against the Borrower and of the entry of any judgment or Lien against any of the
Borrower’s assets or properties.
5.6. Taxes. The Borrower will pay and discharge all Taxes prior to the date when any interest
or penalty would accrue for the nonpayment thereof, except to the extent that the validity or
amount thereof is being contested in good faith and
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by appropriate proceedings and Borrower sets aside on its books adequate reserves therefor.
5.7. Other Agreements. Borrower will not enter into any agreement or undertaking containing
any provision which would be violated or breached by Borrower’s performance of its obligations
under the Loan Documents.
5.8. Representation and Warranties; Compliance. The representations and warranties made by
Borrower in this Agreement shall be true and correct in all respects material to the financial
condition of Borrower with the same force and effect as though such representations and warranties
had been made on and as of the date of any loan advance hereunder (the “Borrowing Date”). All other
representations and warranties made by Borrower in or in connection with this Agreement or any of
the other Loan Documents or otherwise made in writing in connection herewith or therewith shall be
true and correct on and as of the Borrowing Date with the same force and effect as though such
representations and warranties had been made on and as of the Borrowing Date. All of the
agreements, terms, covenants, and conditions required by this Agreement to be complied with and
performed prior to the Borrowing Date by Borrower shall have been complied with and performed. At
Bank’s request, Borrower shall deliver a certificate dated the Borrowing Date executed by a duly
authorized officer of Borrower certifying, in form and substance satisfactory to Bank, as to the
foregoing matters.
SECTION 6. Events of Default
The occurrence of any one or more of the following events (the “Events of Default”) shall
constitute an event of default hereunder:
6.1. Failure to Pay Interest. If the Borrower shall fail to pay any interest on any of the
Liabilities, including, without limitation, the Note and the Line of Credit, when and as due and
payable, and such default shall continue for a period of ten (10) business days after written
notice thereof from the Bank to the Borrower; or
6.2. Failure to Pay Principal, etc. If the Borrower shall fail to pay the principal of any of
the Liabilities, whether by demand under the Note or otherwise, including, without limitation, the
Note and the Line of Credit, or any of the other Liabilities when and as due and payable, and such
default shall continue for a period of ten (10) business days after written notice thereof from the
Bank to the Borrower; or
6.3. Terms, Conditions, and Covenants of This Agreement. If the Borrower shall fail to duly
perform, comply with, or observe any of the other terms, conditions, or covenants contained in this
Agreement (other than a specific default under
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any subsection of this Article 6), and such default shall continue for a period of thirty (30)
days after written notice thereof from the Bank to the Borrower; or
6.4. Representations and Warranties. If any
representation and warranty or any statement or representation made in any report, opinion,
schedule, officer’s certificate, or other certificate or any other information given by the
Borrower or furnished in connection with the Line of Credit shall prove to be false or incorrect in
any material respect on the date as of which made; or
6.5. Default under Loan Documents. If an event of default (as described or defined therein)
shall occur or exist under the provisions of any of the other Loan Documents; or
6.6. Default under Other Obligations. If any obligation of the Borrower (other than the
Liabilities) for the payment of borrowed money to the Lender, becomes or is declared to be due and
payable prior to the expressed maturity thereof and the time of payment is not extended by the
Lender; or
6.7. Judgment against Borrower. If any judgment against the Borrower or any attachment or
other levy against the property of the Borrower with respect to a claim remains unpaid, unstayed on
appeal, undischarged, unbonded, or undismissed for a period of thirty (30) days; or
6.8. Bankruptcy, Insolvency, etc. If the Borrower becomes insolvent or generally does not pay
its debts as they become due, or if a petition for relief in a bankruptcy court is filed by the
Borrower, or if the Borrower applies for, consents to, or acquiesces in the appointment of a
trustee, custodian, or receiver for the Borrower or any of its assets and property, or makes a
general assignment for the benefit of creditors; or, in the absence of such application, consent,
or acquiescence, a trustee, custodian, or receiver is appointed for the Borrower or for a
substantial part of the assets and property of the Borrower and is not discharged within thirty
(30) days; or if any bankruptcy, reorganization, debt arrangement, or other proceeding or case
under any bankruptcy, insolvency, or similar law or any dissolution or liquidation proceeding is
instituted against the Borrower, and the same is not discharged within ninety (90) days; or
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SECTION 7. Rights and Remedies
The occurrence or non-occurrence of an Event of Default under this Agreement shall in no way
affect or condition the right of the Lender to demand payment at any time of any of the Liabilities
which are payable on demand regardless of whether or not such an Event of Default has occurred. If
any one or more Events of Default shall occur, then in each and every such case, the Lender at its
option may at any time thereafter exercise and/or enforce any or all of the following rights and
remedies:
7.1. Commitment. Terminate its commitment to make Line of Credit Loans.
7.2. Acceleration. Declare without notice to the Borrower all of the Liabilities to
be immediately due and payable, whereupon the same shall become due and payable, together
with accrued and unpaid interest thereon, without presentment, demand, protest, or
notice, all of which the Borrower hereby expressly waives.
7.3. Exercise of Rights and Remedies. Exercise any rights and remedies available to the Lender
under this Agreement, the Note, the other Loan Documents, and under applicable laws.
7.4. Liquidation Costs. The Borrower shall reimburse and pay to the Lender upon demand all
costs and expenses (the “Liquidation Costs”), including, without limitation, reasonable attorneys’
fees and expenses, advanced, incurred by, or on behalf of the Lender in collecting and enforcing
the Liabilities and/or the Loan Documents. All Liquidation Costs shall bear interest payable by the
Borrower to the Lender upon demand from the date advanced or incurred until paid in full at a per
annum rate of interest equal at all times to the then highest rate of interest charged on the
principal of any of the Liabilities, plus two percent (2%) per annum.
7.5. Expense Payments. If the Borrower shall fail to make any payment or otherwise fail to
perform, observe, or comply with any of the conditions, covenants, terms, stipulations, or
agreements contained herein, or in any of the Loan Documents, the Lender without notice to or
demand upon the Borrower and without waiving or releasing any obligation or Event of Default may
(but shall be under no obligation to) at any time thereafter make such payment or perform such act
for the account and at the expense of the Borrower, and may enter upon any premises of the Borrower
for that purpose and take all such action thereon as the Lender may consider necessary or
appropriate for such purpose. All sums so paid or advanced by the Lender (the “Expense Payments”),
together with interest thereon from the date paid, advanced, or incurred until repaid in full at a
per annum rate of interest equal at all times to the then highest rate of interest charged on the
principal of any of the Liabilities, plus two percent (2%) per
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annum, shall be paid by the Borrower to the Lender upon demand by the Lender.
7.6. Remedies, etc. Cumulative. Each right, power, and remedy of the Lender as provided for in
this Agreement or in the other Loan Documents or now or hereafter existing at law or in equity or
by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other
right, power, or remedy provided for in this Agreement or in the other Loan Documents or now or
hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of
the exercise by the Lender of any one or more of such rights, powers, or remedies shall not
preclude the simultaneous or later exercise by the Lender of any or all such other rights, powers,
or remedies. No notice to or demand on Borrower in any case shall entitle Borrower to any other
notice or demand in similar or other circumstances.
7.7. Letters of Credit. If the Borrower shall fail to make any payment or otherwise
fail to perform, observe, or comply with any of the conditions, covenants, terms, stipulations, or
agreements contained herein, or in any of the documents evidencing the Obligations, the Lender may,
at its option, advance from the undisbursed portion of the Line of Credit, an amount equal to the
then potential unfunded obligations of the Lender under any letters of credit now or hereafter
issued by the Lender for the account of the Borrower. Any Advance made pursuant hereto shall be (i)
deemed to be an Advance and, therefore, evidenced by the Note (or the note executed in connection
with the issuance of the letter of credit), and (ii) made without notice to, application for or
request by the Borrower. The Lender is irrevocably authorized by the Borrower to make advances in
accordance with this subparagraph. The proceeds of any Advance made pursuant hereto shall be
deposited by the Lender in a deposit account maintained by the Lender as collateral (hereby
assigned), for all the obligations (whether contingent or otherwise) of the Borrower to the
Lender with respect to any Application and Agreement for Irrevocable Standby Letter of Credit or
other document evidencing such letters of credit. Upon the presentation of any letter of credit
posted by the Lender for the account of the Borrower, the Lender shall endeavor to give Borrower
prompt notice of the same, but the failure to do so shall not limit Bank’s obligations under said
letters of credit.
7.8. No Waiver, etc. No failure or delay by the Lender to insist upon the strict performance
of any term, condition, covenant, or agreement of this Agreement or of any of the other Loan
Documents, or to exercise any right, power, or remedy consequent upon a breach thereof, shall
constitute a waiver of any such term, condition, covenant, or agreement or of any such breach, or
preclude the Lender from exercising any such right, power, or remedy at any later time or times. By
accepting
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payment after the due date of any amount payable under this Agreement or under the Note or under
any of the other Loan Documents, the Lender shall not be deemed to waive the right either to
require prompt payment when due of all other amounts payable under this Agreement or under the Note
or under any of the other Loan Documents or to declare an Event of Default for failure to effect
such prompt payment of any such other amount.
SECTION 8. Miscellaneous
8.1. Survival. All covenants, agreements,
representations, and warranties made herein and in any other instruments or documents delivered
pursuant hereto shall survive the execution and delivery of the Note and other Loan Documents and
the making of all advances and extensions of credits thereunder, and shall continue in full force
and effect so long as any of the Liabilities are outstanding and unpaid.
8.2. Notices. All notices, demands, requests, consents, or approvals required under this
Agreement to be in writing shall be deemed to have been properly given if and when mailed by first
class certified mail, return receipt requested, postage prepaid, if to the Lender at 0000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and if to the Borrower at 00 Xxxxx Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000, or at such other address as the Borrower or the Lender shall have
furnished to the other by notice in writing.
8.3. Change, etc. Neither this Agreement nor any term, condition, representation, warranty,
covenant, or agreement hereof may be changed, waived, discharged, or terminated orally but only by
an instrument in writing by the party against whom such change, waiver, discharge, or termination
is sought. Any waiver shall be limited solely to those rights or conditions expressly waived.
8.4. Governing Law. This Agreement and the other Loan Documents shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia. Each party hereto hereby
acknowledges that all parties hereto participated equally in the negotiation and drafting of this
Agreement and that, accordingly, no court construing this Agreement shall construe it more
stringently against one party than against the other.
8.5. Terms Binding. All of the terms, conditions, stipulations, warranties, representations,
and covenants of this Agreement shall apply to and be binding upon, and shall inure to the benefit
of, the Borrower and the Lender and each of their respective heirs, personal representatives,
successors, and assigns.
8.6. Gender, etc. Whenever used herein, the singular number shall include the plural, the
plural (e.g. the “Borrower”)
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the singular (e.g. each of them), and the use of the masculine, feminine, or neuter gender
shall include all genders.
8.7. Headings. The section and subsection headings in this Agreement are for
convenience only, and shall not limit or otherwise affect any of the terms hereof.
8.8. Counterparts. To facilitate execution, this Agreement and any of the other Loan
Documents may be executed in as many counterparts as may be required; and it shall not be
necessary that the signatures of, or on behalf of, each party, or the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be sufficient
that the signature of, or on behalf of, each party, or the signatures of the persons
required to bind any party, appear on one or more of the counterparts. All counterparts
shall collectively constitute a single agreement. It shall not be necessary in making proof
of this Agreement or any other Loan Document to produce or account for any particular number
of counterparts; but rather any number of counterparts shall be sufficient so long as those
counterparts contain the respective signatures of, or on behalf of, all of the parties
hereto.
8.9. Consent to Jurisdiction; Service of Process. The Borrower hereby agrees and consents
that any action or proceeding arising out of or brought to enforce the provisions of this
Agreement may be brought in any appropriate court in the State of
Virginia or in any other court having jurisdiction over the subject matter, all at the sole
election of the Lender, and by the execution of this Agreement the Borrower irrevocably
consents to the jurisdiction of each such court. The Borrower hereby
irrevocably appoints Xxxxxx X. Xxxxxxxxx its respective agent to
accept service of process for it and on its behalf in any proceeding brought pursuant to the
provisions of this subsection and to receive any notices required pursuant to or by the terms of
this Agreement.
8.10. Further Assurances and Corrective Instruments. The Borrower agrees that it
will, from time to time, take such further actions and execute and deliver, or cause to be
executed and delivered, such further instruments as may reasonably be required for carrying
out the intention of, or facilitating the performance of, this Agreement and the other Loan
Documents, whether before, at or after the closing of the transactions contemplated hereby
and thereby or the occurrence of an Event of Default hereunder.
8.11. Setoff. In addition to any rights or remedies of Bank provided by law, upon the
occurrence of any Event of Default hereunder, Bank is hereby irrevocably authorized, at any time
or times without prior notice to Borrower, to set off, appropriate, and apply any and all
deposits, credits, indebtedness or claims at any time held or owing by Bank to or for the credit
or the
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account of Borrower (or any one of them), in such amounts as Bank may elect, against and on account
of the Liabilities of Borrower to Bank hereunder or under any of the other Loan Documents, whether
or not Bank has made any demand for payment, and although such obligations and liabilities may be
contingent or unmatured.
8.12. Payments. If any payment or performance of the Note or of any of the other obligations
under this Agreement or any of the other Loan Documents becomes due on a day other than a Business
Day, the due date shall be extended to the next succeeding Business Day, and interest thereon (if
applicable) shall be payable at the then applicable rate during such extension.
8.13. Estoppel Certificate. The Borrower will, upon not less than ten (10) days’ request by
the Lender or any other party to this transaction, execute, acknowledge, and deliver to such person
a statement in writing, certifying (a) that this Agreement is unmodified and in full force and
effect and the payments required by this Agreement to be paid by the Borrower have been paid, and
(b) the then unpaid principal balance of the Note; and stating whether or not to the knowledge of
the signer of such certificate any party to any of the Loan Documents is in default in the
performance of any covenant, agreement, or condition contained therein and, if so, specifying each
such default of which the signer may have knowledge, it being intended that any such statement
delivered pursuant to this section may be relied upon by the Lender and the other parties to this
transaction.
8.14. Prior Agreements Cancelled. Except for (a) the other Loan Documents, or (b) any other
document or agreement to the extent specifically provided therein, (i) this Agreement shall
completely and fully supersede all other prior agreements, both written and oral, by and among the
Borrower, the Lender, and the other parties to this transaction (and any prior agreements by and
between any two or more of the foregoing), and (ii) none of the parties to this Agreement shall
hereafter have any rights thereunder, but shall look solely to this Agreement and the other Loan
Documents for definitions and determination of all of their respective rights, obligations, and
responsibilities relating to the Liabilities.
8.15. Illegality. If fulfillment of any provision hereof or any transaction relate hereto or
to the other Loan Documents at the time performance of such provisions shall be due shall involve
transcending the limit of validity prescribed by law, then ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein
contained operates or would prospectively operate to invalidate this Agreement in whole or in part,
then such clause or provision only shall void, as though not herein contained, and the remainder of
this Agreement shall remain
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operative and in full force and effect; provided, however, that, if any such provision pertains to
the repayment of the Liabilities, the occurrence of any such invalidity shall constitute an Event
of Default.
8.16. Waiver of Jury Trial. Each of the undersigned hereunder hereby (i) covenants and agrees
not to elect a trial by jury of any issue triable of right by a jury, and (ii) waives any right to
trial by jury fully to the extent that any such right shall now or hereafter exist. This waiver of
right to trial by jury is separately given, knowingly and voluntarily, by each of the undersigned
hereunder, and this waiver is intended to encompass individually each instance and each issue as to
which the right to a jury trial would otherwise accrue. The Lender is hereby authorized and
requested to submit this agreement to any court having jurisdiction over the subject matter and the
parties hereto, so as to serve as conclusive evidence of the undersigned’s herein contained waiver
of the right to jury trial. Further, the Borrower hereby certifies that no representative or agent
of the Lender (including the Lender’s counsel) has represented, expressly or otherwise, to the
Borrower that the Lender will not seek to enforce this waiver of right to jury trial provision.
8.17. Relationship of the Parties. This Agreement provides for the making of loans (issuance
of letters of credit, if applicable) by Lender, in its capacity as a lender, to the Borrower, in
the capacity as a borrower, and for the payment of interest and repayment of principal by the
Borrower to Lender. The relationship between Lender and the Borrower is limited to that of creditor
on the one hand, and debtor, on the other hand. The provisions herein for compliance with financial
covenants, delivery of financial statements, are intended solely for the benefit of Lender to
protect its interests as lender in assuring payments of interest and repayment of principal, and
nothing contained in this Agreement shall be construed as permitting or obligating Lender to act as
a financial or business advisor or consultant to Borrower, as permitting or obligating the Lender
to control Borrower or to conduct Borrower’s operations, as creating any fiduciary obligation on
the part of Lender to Borrower, or as creating any joint venture, agency, or other relationship
between the parties other than as explicitly and specifically stated in this Agreement. The
Borrower acknowledges that they have had the opportunity to obtain the advice of experienced
counsel of its own choosing in connection with the negotiation and execution of this Agreement and
to obtain the advice of such counsel with respect to all matters contained herein, including,
without limitation, the provision in Section 8.16 for waiver of trial by jury. The Borrower further
acknowledges that they are experienced with respect to financial and credit matters and has made
its own independent decision to apply to Lender for credit and to execute and deliver this
Agreement.
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8.18. No Warranty by Lender. By accepting or approving anything required to be observed,
performed or fulfilled by the Borrower or to be given to Lender pursuant to this Loan Agreement,
including, without limitation, any certificate, balance sheet, statement of profit and loss or
other financial statement, survey, receipt, appraisal or insurance policy, the Lender shall not be
deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of
the same, or of any term, provision or condition thereof, any such acceptance or approval thereof
shall not be or constitute any warranty or representation with respect thereto by Lender.
8.19 Reserved.
8.20. Liability of Lender. The Lender shall not be liable for any act or omission by it
pursuant to the provisions of this Loan Agreement in the absence of fraud, gross negligence, or
intentional willful misconduct. The Lender shall incur no liability to the Borrower in connection
with the acts or omissions of the Lender in reliance upon any certificate or other paper believed
by the Lender to be genuine or with respect to any other thing which the Lender may do or refrain
from doing, unless such act or omission amounts to fraud, gross negligence, or intentional willful
misconduct.
8.21. Assignment. This Agreement and the other Loan Documents may not be assigned, in
whole or in part, by the Borrower without the prior written consent of the Lender.
| CUISINE SOLUTIONS, INC., a Delaware corporation | ||||
| By: | /s/ Xxxxxxxxx Xxxxxxxx | [SEAL] | ||
| Xxxxxxxxx Xxxxxxxx, | ||||
| President | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx | [SEAL] | ||
| Xxxxxx Xxxxxxxxx, | ||||
| Treasurer | ||||
| BRANCH BANKING AND TRUST COMPANY |
||||
| By: | /s/ Xxxxx Xxxxx | [SEAL] | ||
| Name: | Xxxxx Xxxxx | |||
| Title: | AVP | |||
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