Exhibit 3.36
BUSINESS LOAN AND CREDIT AGREEMENT
This Seafirst Business Loan Agreement ("Agreement") and Non-Revolving Credit
("Credit") is made between Seattle-First National Bank ("Bank") and Centennial
Foods, Inc., an Idaho Corporation ("Corporate Borrower"), and Mr. & Mrs. Xxx
Xxxxxxxx, Mr. & Mrs. Xxxxxxx Xxxxx, Mr. & Xxx. Xxxxxxx Xxxx, Mr. & Xxx. Xxxxx
Xxxxxxx, Mr. & Xxx. Xxxxxx Xxxxxxx, Mr. & Xxx. Xxxx Xxxxxxx, Mr. & Xxx. Xxxxx
Xxxxxxx, Mr. & Mrs. Xxxxxxx Xxxx, Mr. & Xxx. Xxxxx Xxxxxxx, Mr. & Xxx. Xxx
Xxxxxxx, Mr. & Xxx. Xxxxxx Xxxxxxxx, Mr. & Mrs. Xxxxxx Xxxxxx, Mr. & Mrs. Xxx
Xxxxxxx, Mr. & Xxx. Xxxxxxx Xxxxx, Mr. & Xxx. Xxxx Xxxxxxx, Mr. & Xxx. Xxxxx
Xxxxxxxx, Mr. & Xxx. Xxxx Xxxxxx ("Individual Borrowers"), with respect to
assisting the Corporate Borrower in the purchase, equiping and operation of the
Corporate Borrower's facility in Dillon, Montana, and a portion of Individual
Borrowers' equity in the facility. Collectively, the Corporate Borrower and the
Individual Borrowers are referred to as Borrowers.
PART A
LOANS
I. Term Loan No. 1709468-50013. Subject to the terms of this Agreement, Bank
agrees to lend to Corporate Borrower as follows:
(a) Borrower: Centennial Foods, Inc.
(b) Amount: $1,184,000.00
(c) This loan must be closed by December 14, 1990. This loan
matures on April 1, 1993.
(d) Interest Rate: Bank's publicly announced prime rate plus 1.00
percent of principal per annum, adjusted on the date of any
Bank prime rate change.
(e) Interest Rate Basis: All interest will be calculated at the
per annum interest rate based on a 360-day year and applied to
the actual number of days elapsed.
(f) Repayment: At the times and in amounts as set forth in the
note required under Part B of this Agreement.
(g) Loan Fee: $11,840.00 payable on date of closing. Loan fee is
fully earned and nonrefundable upon execution of this
Agreement.
(h) Other Fees: Attorney fees for documentation and closing,
amount to be provided at closing.
(h) Collateral: This term loan shall be secured by a security
interest, which is hereby granted, in favor of Bank on the
following collateral: A perfected first lien position on all
now existing or hereafter acquired equipment, fixtures and
furniture, including vehicles of Borrower. The Bank will
accept prior lien positions by the Montana Department of
Natural Resources and the Montana CDBG and EDA programs as to
those existing fixtures and equipment acquired from the State
of Montana. Borrower will provide evidence of the purchase of
new equipment, fixtures and furniture in an amount not less
than $900,000.00. This Term loan is also to be collateralized
by personal guarantees totaling $1,184,000.00 and supported by
acceptable irrevocable and u nconditional Letters of Credit,
in a form acceptable to the Bank and in an amount specified in
Part B, paragraph 2.6. As an. alternative to a Letter of
Credit, Bank will accept cash collateralization or pledge of
securities listed on the NYSE, AMEX, or NASDQ, acceptable to
Bank and having a value of 150% of the Letter of Credit amount
identified on the attached exhibit, which margin shall be
maintained. Collateral instruments to be delivered at or
before closing. Bank reserves the right to require additional
collateral to maintain said margin, additional collateral to
be delivered to Bank within ten days of Bank's certified
mailing requesting augmentation of collateral.
II. Term Loan No. 1709476-00018. Subject to the terms of this Agreement,
Bank agrees to lend to the Individual Borrowers, collectively, as
follows:
(a) Borrowers: Mr. & Mrs. Xxx Xxxxxxxx; Mr. & Mrs. Xxxxxxx Xxxxx;
Mr. & Xxx.Xxxxxxx Xxxx; Mr. & Xxx. Xxxxx Xxxxxxx; Mr. & Xxx.
Xxxxxx Xxxxxxx; Mr. & Xxx. Xxxx Xxxxxxx; Mr. & Xxx. Xxxxx
Xxxxxxx; Mr. & Mrs. Xxxxxxx Xxxx; Mr. & Xxx. Xxxxx Xxxxxxx;
Mr. & Xxx. Xxx Xxxxxxx; Mr. & Xxx. Xxxxxx Xxxxxxxx; Mr. & Mrs.
Xxxxxx Xxxxxx; Mr.& Mrs.Xxx Xxxxxxx; Mr. & Xxx.Xxxxxxx
Xxxxx;Mr.& Xxx.Xxxx Xxxxxxx;Mr.& Xxx.Xxxxx Xxxxxxxx; Mr. &
Xxx. Xxxx Xxxxxx; Mr. & Xxx. Xxxxxxx X. Xxxxxxx; Mr. & Xxx.
Xxxx Xxxxxxx.
(b) Amount: $296,000.00.
(c) This loan must be closed by December 14, 1990. This loan
matures on April 1, 1993.
(d) Interest Rate: Bank's publicly announced prime rate plus 1.00
percent of principal per annum, adjusted on the date of any
Bank prime rate change.
(e) Interest Rate Basis: All interest will be calculated at the
per annum interest rate based on a 360-day year and applied to
the actual number of days elapsed.
(f) Repayment: At the times and in amounts as set forth in the
note required under Part B of this Agreement.
(g) Loan Fee: $2,960.00 payable on date of closing. Loan fee is
fully earned and nonrefundable upon execution of this
Agreement.
(h) Other Fees: Attorney fees for documentation and closing,
amount to be provided at closing.
(i) Collateral: Letters of Credit in a form acceptable to Bank and
in an individual amount as set forth in Part B, paragraph 2.6.
As an alternative to a Letter of Credit, Bank will accept cash
collateralization or pledge of securities listed on the NYSE,
AMEX or NASDQ, acceptable to bank and having a value of 150%
of the Letter of Credit amount identified on the attached
exhibit, which margin shall be maintained. Collateral
instruments to be delivered at or before the date of closing.
Bank reserves the right to require additional collateral to
maintain said margin, additional collateral to be delivered to
Bank within ten days of Bank's certified mailing requesting
augmentation of collateral.
PART B
TERMS AND CONDITIONS
Unless otherwise designated, all Terms and Conditions apply to both
Corporate Borrowers and Individual Borrowers.
1. Promissory Notes. All loans shall be evidenced by promissory
notes in a form and substance satisfactory to Bank.
2. Conditions to Availability of Loan. Before Bank is obligated
to disburse or make any advance, or at any time thereafter
which Bank deems necessary and appropriate, Bank must receive
all of the following, each of which must be in form and
substance satisfactory to Bank ("loan documents"):
2.1 Original, executed promissory notes;
2.2 Original executed Security Agreement covering the
collateral described in Part A; Section I and Section
II, as applicable.
2.3 All collateral described in Part A in which Bank
wishes to have a possessory security interest;
2.4 Financing statements) executed by Borrower;
2.5 Such evidence that Bank may deem appropriate that the
security interests and liens in favor of Bank are
valid, enforceable, and prior to the rights and
interests of others except those consented to in
writing by Bank;
2.6 The following limited guaranties and supporting
unconditional irrevocable Letters of Credit (not to
expire before 90 days after maturity date of any
loan) in favor of the Bank and in a form, acceptable
to the Bank to cross-collateralize the Corporate Note
(Part A, Section I) and the individual note (Part A,
Section II) or any other loan to a Borrower at the
discretion of Bank:
INDIVIDUAL BORROWER AND GUARANTEE LETTERS OF INDIVIDUAL NOTE
LIMITED GUARANTORS AMOUNT CREDIT AMOUNT
Mr. & Mrs. Xxx Xxxxxxxx $148,000.00 $100,000.00 $37,000.00
Mr. Mrs. Xxxxxxx Xxxxx 148,000.00 100,000.00 37,000.00
Mr. & Xxx. Xxxxxxx Xxxx 148,000.00 100,000.00 37,000.00
Mr. & Xxx. Xxxxx Xxxxxxx 148,000.00 100,000.00 37,000.00
Mr. & Xxx. Xxxxxx Xxxxxx 148,000.00 100,000.00 37,000.00
Mr. & Xxx. Xxxx Xxxxxxx 80,000.00 54,000.00 20,000.00
Mr. & Xxx. Xxxxx Xxxxxxx 148,000.00 185,000.00 37,000.00
Mr. & Mrs. Xxxxxxx Xxxx 40,000.00 50,000.00 10,000.00
Mr. & Xxx. Xxxxx Xxxxxxx 36,000.00 45,000.00 9,000.00
Mr. & Xxx. Xxx Xxxxxxx 20,000.00 25,000.00 5,000.00
Mr. & Xxx. Xxxxxx Xxxxxxxx 8,000.00 10,000.00 2,000.00
Mr. & Mrs. Xxxxxx Xxxxxx 8,000.00 10,000.00 2,000.00
Mr. & Mrs. Xxx Xxxxxxx 8,000.00 10,000.00 2,000.00
Mr. & Xxx. Xxxxxxx Xxxxx 8,000.00 10,000.00 2,000.00
Mr. & Xxx. Xxxx Xxxxxxx 8,000.00 10,000.00 2,000.00
Mr. & Xxx. Xxxxx Xxxxxxxx 8,000.00 10,000.00 2,000.00
Mr. & Xxx. Xxxx Xxxxxx 8,000.00 10,000.00 2,000.00
Mr. & Xxx. Xxxxxxx X. Xxxxxx 52,000.00 65,000.00 13,000.00
Mrs. & Xxx. Xxxx Xxxxxxx 12,000.00 15,000.00 3,000.00
------------- ------------- -----------
TOTAL $1,184,000.00 $1,009,000.00 $296,000.00
============= ============= ===========
2.7 Subordination agreements in favor, of Bank executed
by all direct lenders or creditors to Borrower,
except the Montana Department of Natural Resources.
2.8 Evidence that the execution, delivery, and
performance by Borrower of this Agreement and the
execution, delivery, and performance by any corporate
Subordinating creditor of any instrument or agreement
required under this Agreement has been duly
authorized;
2.9 A written legal opinion expressed to Bank, of counsel
for Borrower as to the matters set forth in sections
3.1 and 3.2, and to the best of such counsel's
knowledge after reasonable investigation, the matters
set forth in sections 3.3, 3.5, 3.6, 3.7 and the
other matters as the Bank has requested in its
letters of commitment dated November 2, 1990
(Attachments 1 & 2);
2.10 Release of any Prior security interest in pledged
collateral;
2.11 Copies of Corporate Borrower's Articles
ofIncorporation and By laws.
2.12 Copy of the executed Purchase Agreement for the
Dillon, Montana, facility.
2.13 Reimbursement to Bank for any out-of-pocket expenses
expended in making or administering the loans made
hereunder including without limitation attorney's
fees (including allocated costs of in-house counsel);
2.14 A corporate guarantee from Centennial Foods, Inc.,
for the Individual Borrowers.
2.15 All conditions as set forth in letter of commitment
dated November 2, 1990, from Bank to Borrower.
2.16 Any other document which is deemed by the Bank to be
required from time to time to evidence loans or to
effect the provisions of this Agreement;
3. Representations and Warranties. Borrower represents and
warrants to Bank as of the date of this Agreement and
hereafter so long as credit granted under this Agreement is
available and until full and final payment is made of all sums
outstanding under this Agreement and the promissory notes
that:
3.1 Borrower is duly organized and existing under the
laws of the state of its organization as a
Corporation. Borrower is properly licensed and in
good standing in each state in which Borrower is
doing business. Borrower has qualified under, and
complied with, where required, the fictitious or
trade name statutes of each state in which Borrower
is doing business, and Borrower has obtained all
necessary government approvals for its business
activities. The execution, delivery, and performance
of this Agreement and such notes and other
instruments required herein are within Borrower's
powers, have been duly authorized, and, as to
Borrower and any guarantor, are not in conflict with
the terms of any charter, bylaw, or other
organization papers of Borrower. This Agreement and
the loan documents are valid and enforceable
according to their terms.
3.2 The execution, delivery, and performance of this
Agreement are not in conflict with any law or any
indenture, agreement or undertaking to which Borrower
is a party or by which Borrower is bound or affected.
3.3 Borrower has title to each of the properties and
assets as reflected in its financial , statements
(except such assets which have been sold or otherwise
disposed of in the ordinary course of business), and
no assets or revenues of the Borrower are subject to
any lien except as required or permitted by this
Agreement, disclosed in its financial statements or
otherwise previously disclosed to Bank in writing.
3.4 All financial information, statements as to ownership
of Borrower and all other statements submitted by
Borrower to Bank, whether previously or in the
future, are and will be true and correct in all
material respects upon submission and are and will be
complete upon submission insofar as may be necessary
to give Bank a true and accurate knowledge of the
subject matter thereof.
3.5 Borrower has filed all tax returns and reports as
required by law to be filed and has paid all taxes
and assessments applicable to Borrower or to its
properties which are presently due and payable.
3.6 There are no proceedings, litigations or claims
(including unpaid taxes) against Borrower pending or,
to the knowledge of the Borrower, threatened, before
any court or government agency, and no other event
has occurred which may have a material adverse effect
on Borrower's financial condition other than such
litigation, claim or other event, if any, as has been
disclosed to Bank in writing.
3.7 There is no event which is, or with notice or lapse
of time, or both, would be, an Event of Default (as
defined in Article 6) under this Agreement.
4. Affirmative Covenants. So long as credit granted under this
Agreement is available and until full and final payment is
made of all sums outstanding under this Agreement and
promissory note Borrower will:
4.1 Use the proceeds of the loans covered by this
Agreement only in connection with Borrower's business
activities and exclusively for the purposes of the
purchase of furniture, fixtures, equipment and of the
operation of the Borrower facility in Dillon,
Montana;
4.2 Borrower agrees to furnish Bank with evidence of
insurance covering the life of Xxx Xxxxx, or his
successor officer. Borrower shall take actions to
name Bank as beneficiary and obtaining the insurer's
acknowledgement thereof, to provide that in the event
of the death of the named insured, the policy
proceeds will be applied to payment of Borrower's
obligations owing to Bank;
Name: Xxx Xxxxx, or successor
Amount: $1,480,000.00
4.3 Promptly give written notice to Bank of:
(a) all litigation affecting Borrower where the
amount claimed is $50,000.00 or more;
(b) any substantial dispute which may exist
between Borrower and any governmental
regulatory body or law enforcement
authority;
(c) any Event of Default under this Agreement or
any other Agreement with Bank or any other
creditor, or any event which, upon notice,
or a lapse of time, or both, would become an
Event of Default; and
(d) any other matter which has resulted or might
result in a material adverse change in
Borrower's financial condition or
operations;
4.4 Corporate Borrower shall as soon as available, but in
any' event within ninety (90) 'days following the
close of each of Corporate Borrower's fiscal years,
provide a CPA prepared financial statement of review
quality or better, beginning with the fiscal year
December 31,1990. In addition, Corporate Borrower
will provide internally prepared monthly income
statements presented within forty-five (45) days of
each month end and beginning with the month ending
March 31, 1991. Balance sheets will be provided
within forty-five (45) days of the quarter, beginning
with the quarter ending March 31, 1991. These reports
areprovided solely to aid the Bank in evaluation of
present and future performance of its loans;
4.5 Corporate Borrower will maintain in effect insurance
with responsible insurance companies in such amounts
and against such risks as are customarily maintained
by persons engaged in businesses similar to that of
Corporate Borrower and all policies covering property
given as security for the loans shall have loss
payable clauses in favor of Bank. Corporate Borrower
agrees to deliver to Bank such evidence of insurance
within thirty (30) days of closing or of purchase of
property, whichever is later. Further, if deemed
necessary by the Bank, Corporate Borrower will
purchase, and if necessary.. obtain additional
insurance;
4.6 Borrower will pay all indebtedness, including the
loan obligation to Bank, taxes and other obligations
for which the Borrower is liable or to which its
income or property is subject before they shall
become delinquent;
4.7 Corporate Borrower will continue to conduct its
business as presently constituted and as projected,
with the addition of the Xxxxxx facility, and will
maintain and preserve all rights, privileges, and
proprietary interests now enjoyed, conduct Corporate
Borrower's business in an orderly, efficient and
customary manner, keep all Corporate Borrower's
properties in good working order and condition, and
from time to time make all needed repairs, renewals
or replacements so that the efficiency of Corporate
Borrower's properties shall be fully maintained and
preserved;
4.8 Borrower will maintain adequate books, accounts and
records and prepare all financial statements required
.hereunder in accordance with generally accepted
accounting principles and practices consistently
applied, and in compliance with the regulations of
any governmental regulatory body having jurisdiction
over Borrower or Borrower's business;
4.9 Individual guarantor/borrower will provide a
statement of personal financial condition of a date
not greater than 12 months old at any time that a
balance is outstanding on either the term loan to
Centennial Foods, Inc. or the term loan to the
Individual Borrower. A guarantor/borrower who
provides a Letter of Credit to back 100% of his
limited guarantee and the direct obligation of this
credit will not be required to provide financial
statements.
4.10 Borrower will permit representatives of Bank to
examine the books and records of Borrower at
reasonable times during normal office hours upon
twenty-four (24) hour notice;
4.11 Borrower will perform, on request of Bank, such acts
as may be necessary or advisable to perfect any lien
or security interest provided for herein or to
otherwise carry out the intent of this Agreement;
4.12 Borrower will comply with all applicable federal,
state and municipal laws, ordinances, rules and
regulations relating to its properties, charters,
businesses and operations, including compliance with
all minimum funding and other requirements related to
any of Borrower's employee benefit plans.
5. Negative Covenants. So long as credit granted under this
Agreement is available and until full and final pay ment is
made of all sums outstanding under this Agreement and
promissory notes, Borrower will not:
5.1 Corporate Borrower will not, without the prior
written consent of Bank, during any fiscal year
covered by this Loan & Credit Agreement, expend in
the aggregate more than $100,000.0o for fixed assets,
nor more than $25,000.00 for any single fixed asset;
the deferred balances under purchase or lease
agreements for acquisition or lease of fixed assets
shall be considered a current expenditure for a
fiscal year for the purposes of this Agreement. The
parties agree this limitation on expenditure of fixed
assets shall not apply to a sum not to exceed
$1,900,000.00 as part of the startup of the Dillon,
Montana, facility;
5.2 Corporate Borrower will not, without the prior
written consent of Bank, purchase or lease under an
agreement for acquisition, incur any other
indebtedness for borrowed money, mortgage, assign, or
otherwise encumber any of Corporate Borrower's
assets, nor sell, transfer or otherwise hypothecate
any such assets except in the ordinary course of
business. Borrower shall not guaranty, endorse,
co-sign, or otherwise become liable upon the
obligations of others, except by the endorsement of
negotiable instruments for deposit or collection in
the ordinary course of business. For purposes of this
paragraph, the sale or assignment of accounts
receivable, or the granting of a security interest
therein, shall be deemed the incurring of
indebtedness for borrowed money;
5.3 Corporate Borrower will not, without Bank's prior
written consent, declare any dividends on shares of
its capital stock, or apply any of its assets to the
purchase, redemption or other retirement of such
shares, or otherwise amend its capital structure;
5.4 Corporate Borrower will not make any loan or advance
to any person(s) or purchase or otherwise acquire the
capital stock, assets or obligations of, or any
interest in, any person, except (a) commercial bank
time deposits maturing within one year, (b)
marketable general obligations of the United States
or a State, or marketable obligations fully
guaranteed by the United States, or (c) short-term
commercial paper with the highest rating of a
generally recognized rating service.
5.5 Borrower will not liquidate or dissolve or enter into
any consolidation, merger, pool, joint venture,
syndicate or other combination, or sell, lease or
dispose of Borrower's business assets as a whole' or
such as in the opinion of Bank constitute a
substantial portion of Borrowerts business or assets;
5.6 Corporate Borrower will not engage in any business
activities or operations substantially different from
or unrelated to present business activities or
operations.
6. Events of Default. The occurrence of any of the following
events ("Events of Default") shall terminate any obligation on
the part of Bank to make or 'continue the loan and, at the
option of Bank, shall make all sums of interest and principal
outstanding under the loans immediately due and payable,
without notice of default, presentment or demand for payment,
protest or notice of nonpayment or dishonor, or other notices
or demands of any kind or character, all of which are waived
by Borrower, and Bank may proceed with collection of such .
obligations and enforcement and realization upon all
guarantees and/or security which it may hold and to the
enforcement of all rights hereunder or at law:
6.1 The Borrower shall fail to pay when due any amount of
principal or interest on any loans or notes executed
in connection herewith or any other amount payable by
it hereunder;
6.2 Borrower shall fail to comply with the provisions of
any other covenant, obligation or term of this
Agreement for a Period of thirty (30) days after
written notice shall have been given to the Borrower
by Bank, or fails to comply with any covenant,
obligation or term of this Agreement after Borrower
or any Guarantor has knowledge of an Event of
Default, or an event that can become an Event of
Default;
6.3 Borrower shall fail to pay when due any other
obligation for borrowed money, or to perform any term
or i covenant on its part to be performed under any
agreement relating to such obligation or any such
other debt shall be declared to be due and payable
and such failure shall continue after the applicable
grace period;
6.4 Any representation or warranty made by Borrower in
this Agreement or in any other statement to Bank
shall prove to have been false or misleading in any
material respect when made;
6.5 Borrower makes an assignment for the benefit of
creditors, files a petition in bankruptcy, is
adjudicated insolvent or bankrupt, petitions to any
Court for a receiver or trustee for Borrower or any
substantial part of its property, commences any
proceeding relating to the arrangement, readjustment,
reorganization or liquidation under any bankruptcy or
similar laws, or if there is commenced against
Borrower any such proceedings which remain
undismissed for a period of thirty (30) days or, if
Borrower by any act indicates its consent or
acquiescence in any such proceeding or the
appointment of any such trustee or receiver;
6.6 Any judgment attaches against Borrower or its
property for an amount in excess of $50,000.00 which
remains unpaid, unstayed on appeal, unbonded, or not
satisfied for a period of thirty (30) days;
6.7 Loss of any required government approvals, and/or any
governmental regulatory authority takes or institutes
action which, in the opinion of Bank, will adversely
affect Borrower's condition, operations or ability to
repay the loan or line of credit;
6.8 Failure of Bank to have a legal, valid and binding
first lien on, or a valid and enforceable prior
perfected security interest in, and property covered
by the security agreement required under this
Agreement;
6.9 Borrower ceases to exist as a going concern;
6.10 Occurrence of an extraordinary situation which gives
Bank reasonable grounds as determined in Bank's
discretion, to believe that Borrower may not, or will
be unable to, perform its obligations under this or
any other agreement between Bank and Borrower;
6.11 Any of the preceding events occur with respect to any
guarantor of credit under this Agreement, or such
guarantor dies or becomes incompetent, unless the
obligations arising under the guaranty and related
agreements have been unconditionally assumed by the
guarantor's estate in a manner satisfactory to Bank.
7. Successors; Waivers. Not withstanding the Events of Default
above, this Agreement shall be binding upon and inure to the
benefit of Borrower and Bank, their respective successors and
assigns, except that Borrower may not assign its rights
hereunder. No consent or waiver under this Agreement shall be
effective unless in writing and shall not waive or affect any
other default, whether prior or subsequent thereto, and
whether of the same or different type.
8. Collection Activities, Lawsuits and Governing Law. Borrower
agrees to pay Bank all costs and expenses, including actual
attorney's fees and the allocated cost for in-house legal
services incurred by Bank, to enforce this Agreement or any
notes or security agreements entered into pursuant to this
Agreement, whether or not suit is instituted. If suit is
instituted by Bank to enforce this Agreement or any loan
documents, Borrower consents to the personal jurisdiction of
the Courts of the State of Washington and Federal Courts
located in the State of Washington. Borrower further consents
to the venue of suit in Spokane, Spokane County, Washington.
This Agreement and any notes and security agreements entered
into pursuant to this Agreement shall be construed in
accordance with the laws of the State of Washington.
9. Miscellaneous Provision. This agreement is subject to the
following additional provisions:
9.1 In conjunction with this agreement, Bank is lending
to certain investors the sum of $296,000.00. These
individuals, as identified in Paragraph 2.6,
represent that the funds advanced to them are for the
purpose of partial equity investment with Corporate
Borrower. Corporate Borrower agrees to guarantee the
advance of the sum of $296,000.00 to these
individuals on a form acceptable to Bank. Further,
Borrower represents the relationship between the
Borrower and its investors is in full compliance with
the applicable laws to include, without limitation,
state and federal securities laws. Corporate Borrower
agrees to indemnify and hold harmless Bank from any
claim, of any nature, made by any individual investor
against Ba@ik arising out of the advance of funds or
the operation of Centennial Foods, Inc. Further,
Corporate Borrower will collect and make the
appropriate payment to Bank for the obligation owed
by the Individual Borrowers. In making this
collection and payment, Corporate Borrower is not to
be construed as the agent of the Bank. Corporate
Borrower further agrees to indemnify and hold
harmless Bank from any claim made by an
investor/borrower as to the correctness of Corporate
Borrower's procedure for collection of funds,
application of funds or payment to Bank.
9.2 This agreement sets forth the entirety of the
understanding and obligations of the parties. Any
modification or extension of this agreement must be
in writing and signed by all parties, including
guarantors.
9.3 Pending purchase of the Xxxxxx facility, Borrower
agrees to deposit in escrow with Bank a sum of not
less than $370,000.00. Such funds to be released to
Borrower upon purchase of the Xxxxxx facility and for
use in that facility's operation.
9.4 Borrower shall provide evidence that the CDBG and EDC
have approved loans in the amount of $780,000 and
such funds shall be forthcoming.
9.5 Borrower shall deliver an executed copy of the
purchase agreement for the Xxxxxx facility from the
State of Montana.
9.6 Should any provision of this Agreement be declared
unenforceable by a court of competent jurisdiction,
such ruling shall not affect the validity or
enforceability of any other provision.
9.7 Time is of the essence of this Agreement.
9.8 Bank's failure at any time to require strict
performance by Borrower of any provisions of this
Agreement shall not waive, affect or diminish any
right of Bank nor impair any right or power of Bank
under this Agreement or be construed to be a waiver
of any default or acquiescence therein. Any waiver of
Bank's rights must be in writing signed by Bank and
shall be valid only to the extent specifically set
forth.
9.9 Any notices required under this Agreement shall be
given by certified mail to:
BANK: Xx. Xxxxxxx X. Xxxx BORROWER: Xx. Xxx Xxxxx
Assistant Vice President President
Seattle-First National Bank Centennial Foods, Inc.
West 601 Riverside,Floor 5 000 Xxxxx Xxxxxxxxxx Xx.
P. 0. Xxx 0000 Xxxxxx, Xxxxxxx 00000
Xxxxxxx, Xxxxxxxxxx 00000
9.10 All security agreements and guarantees executed
pursuant to this Agreement shall continue in full
force until all obligations are paid and continue in
effect in the event this Agreement or subsequent
credit agreements are executed, renewed, modified or
renegotiated. Should a default occur and Bank collect
under the guarantees, once Bank is fully satisfied,
Guarantors may acquire rights against Corporate
Borrower such as subrogation rights. If such rights
are acquired by Guarantors and Guarantors make a
timely request to Bank, to the extent allowed by law,
Bank shall assign its security interest in the
collateral to Guarantors.
9.11 Assuming performance of all obligations, Bank hereby
agrees to refinance the balance of the Corporate
Borrower note and $266,400.00 of the Individual
Borrower note upon mutually agreeable terms with an
amortization of up to five years. The agreement to
refinance will require, at the Bank's sole
discretion, the obligation to post 100%
collateralization in the form of acceptable cash
equivalents or acceptable securities as described in
Part "A," II (1) , or unconditional irrevocable
letters of credit to cover the remaining balance of
all obligations. Beyond this provision, no commitment
to refinance is intended or implied.
9.12 Setoff. The Bank shall have the right to set off
balances of the Borrower or Guarantors and apply said
balances to their obligations under this Agreement,
or any other agreement between the parties. Bank may
exercise this right upon the occurrence of any
default or any event which with the lapse of time
would constitute a default hereunder. This right may
also be exercised after the maturity of the Note,
termination of this Agreement or maturity of any
other obligation.
9.13 Headings. The captions and headings contained in this
Agreement are for the convenience and direction of
the parties and have no substantive meaning or
content.
This Business Loan and Agreement executed by the parties on November 7,
1990 .
SEATTLE-FIRST NATIONAL BANK /s/Spokane &Eastern
(Branch/Office)
By: /s/RMO
-----------------
Title: Assistant Vice President
CENTENNIAL FOODS, INC.
By:/s/Xxx Xxxxx 11/7/90
--------------------
Xxx Xxxxx
Title: President
-----------------------
Mr. Xxx Xxxxxxxx
-----------------------
Mrs. Xxx Xxxxxxxx
-----------------------
Mr. Xxxxxxx Xxxxx
-----------------------
Mrs. Xxxxxxx Xxxxx
-----------------------
Xx. Xxxxxxx Xxxx
-----------------------
Xxx. Xxxxxxx Xxxx
-----------------------
Xx. Xxxxx Xxxxxxx
-----------------------
Xxx. Xxxxx Xxxxxxx
