EXHIBIT 10.51
AMENDED AND RESTATED
LOAN AND STOCK PLEDGE AGREEMENT
THIS AMENDED AND RESTATED LOAN AND STOCK PLEDGE AGREEMENT (this
"Agreement") is made and entered into as of the 26th day of October, 2001, by
and among Bionutrics, Inc., a Nevada corporation ("Borrower"), HealthSTAR
Holdings, LLC, ("Holdings"), Ropart Investments, LLC, Xiagen Ltd., Xxxxxx X.
Xxxx, Xxxxxxx XxXxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx X. Xxxxxxx and any other party
who signs this Agreement as a lender (collectively, "Lenders"), and Xxxxxxx
XxXxxxxxx, as agent for Lenders ("Agent").
RECITALS
A. Borrower has requested, and Lenders have severally and not jointly
agreed to make, a multiple advance loan to Borrower in an amount not to exceed
Seven Hundred Thousand Dollars ($700,000.00) (the "Loan") (except as limited
herein). Amounts advanced as of the date hereof are set forth on Schedule A,
which may be updated from time to time.
B. Lenders have requested, and Agent has agreed, that Agent act as
their agent for purposes of administering the Loan and holding the collateral
for the Loan.
C. Ropart Investments, LLC, Xiagen Ltd., Xxxxxx X. Xxxx, Xxxxxxx
XxXxxxxxx, Xxxx Xxxxxxxxxx, and Xxxxxxx X. Xxxxxxx (the "Original Lenders")
entered into a Loan and Stock Pledge Agreement with Borrower and Agent dated as
of June 20, 2001 (the "Original Loan Agreement").
D. Pharmaceutical Marketing Brands, Inc. ("PMB") has loaned One Hundred
Fifty Thousand Dollars ($150,000) to Borrower evidenced by a promissory note
dated September 7, 2001 which loan is secured by a security interest in and to
certain of the assets of Borrower pursuant to a security agreement of even date
therewith. PMB has assigned all of its rights, title and interest in and to the
note and security agreement to HealthSTAR Holdings.
E. Borrower, Agent, and the Original Lenders wish to amend and restate
the Original Loan Agreement and desire to have HealthSTAR Holdings LLC become a
party to this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth in this Agreement, the parties hereby agree as follows:
1. LOAN. Lenders hereby severally and not jointly agree to make at
their discretion the Loan to Borrower. Borrower shall execute the Amended and
Restated Consolidated Multiple Advance Non-Revolving Note, of even date
herewith, in the maximum principal amount of Five Hundred Twenty-Five Thousand
Dollars ($525,000.00) in favor of Agent, for the ratable (or as agreed upon)
benefit of Lenders except for Holdings and in the maximum principal amount of
One Hundred Seventy-Five Thousand Dollars ($175,000) in favor of Agent for the
benefit of Holdings (the "Note"). In the event Holdings does not advance the
maximum amount of One Hundred
Seventy-Five Thousand Dollars ($175,000), the other Lenders may make such
advance so long as the maximum principal amount under the Loan does not exceed
Seven Hundred Thousand Dollars ($700,000).
2. AGENT.
(a) APPOINTMENT OF AGENT. Lenders hereby irrevocably designate
and appoint Agent as the agent of Lenders for purposes of administering the Loan
and holding any collateral for the Loan. Lenders irrevocably authorize Agent to
take such action on their behalf with respect to the Loan and any collateral for
the Loan and to exercise such powers and perform such duties as are reasonably
incidental thereto.
(b) EXCULPATORY PROVISIONS. Agent shall not have (i) any
duties or responsibilities, except those expressly set forth herein or in the
Note, or (ii) any fiduciary relationship with any of Lenders. No implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement, the Note or the other Loan Documents (as defined in
the Note) or otherwise exist against Agent. Agent shall not be (i) liable to
Lenders for any action lawfully taken or not taken by it under or in connection
with the Loan, or (ii) responsible in any manner to any of Lenders for (x) any
recitals, statements, representations or warranties made by Borrower under or in
connection with the Loan Documents, (y) the value, validity, effectiveness,
genuineness, enforceability or sufficiency of the Note, this Agreement or any
other Loan Document, or (z) any failure of Borrower to perform its obligations
hereunder or thereunder.
(c) SUCCESSOR AGENT. Agent may resign upon thirty (30) days'
prior written notice to Borrower and Lenders. If Agent resigns as Agent, then
Lenders during such thirty (30) day period shall appoint a successor agent, the
selection of which they shall unanimously agree upon. Such successor agent shall
succeed to the rights, powers and duties of Agent and the term "Agent" shall
mean such successor agent, effective upon its appointment. The former Agent's
rights, powers and duties as Agent shall be terminated, without any other or
further act or deed on the part of such former Agent, Borrower or Lenders.
Notwithstanding anything herein to the contrary, so long as no Event of Default
(as defined in the Note) shall have occurred and be continuing, the appointment
of each successor Agent shall be subject to the prior approval by Borrower.
Lenders may unanimously agree to replace Agent at any time and select a
Successor Agent.
3. PLEDGE OF STOCK. Borrower hereby pledges to Agent, for the ratable
benefit of Lenders, and grants to Agent, for the ratable benefit of Lenders, a
security interest in all right, title and interest (legal and equitable) of
Borrower in one hundred (100) shares of common stock, par value $.01 per share,
of InCon Technologies, Inc., a Delaware corporation, which represents all of the
shares of InCon Technologies, Inc. owned by Borrower, represented by stock
certificate No. 1 in the name of Nutrition Technology Corporation, a
wholly-owned subsidiary of Borrower (the "Pledged Shares") and all cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the Pledged Shares (collectively, the "Pledged Collateral").
2
4. SECURITY FOR OBLIGATIONS. This Agreement secures, and the Pledged
Collateral is security for, the full, complete and timely payment, performance
and discharge of Borrower's obligations under the Note, this Agreement and the
Loan Documents.
5. DELIVERY OF PLEDGED COLLATERAL. Borrower shall deliver to Agent all
certificates representing or evidencing the Pledged Shares and such certificates
shall be accompanied by duly executed instruments of transfer or assignment in
blank, in form and content substantially similar to Exhibit A as attached
hereto.
6. COMMITMENT OF LENDERS OTHER THAN HOLDINGS. It is the intention of
Lenders other than Holdings that the advances under the Loan to Borrower shall
be made on a pro rata basis by each of Lenders providing its pro rata share of
the requested advance to Agent to be disbursed by Agent to Borrower or in such
other manner as agreed to from time to time. Such advances shall be made at the
sole discretion of each of the Lenders up to the maximum principal amount of
Five Hundred Twenty-Five Thousand Dollars ($525,000) or such greater amount as
provided for herein.
7. COMMITMENT OF HOLDINGS. Holdings advances under the Loan to Borrower
shall be limited to One Hundred Seventy-Five Thousand Dollars ($175,000),
including amounts advanced to date. Holdings shall determine at its discretion
when and if to advance the remaining Twenty-Five Thousand Dollars ($25,000) it
is committed to advance under the Loan.
8. BORROWER'S REPRESENTATIONS. Borrower hereby represents and warrants
to Lenders as follows:
(a) Borrower has good and marketable title to the Pledged
Collateral, free and clear of all security interests, liens, claims, charges and
encumbrances of any kind or nature whatsoever, subject to the restrictions on
sale imposed by federal securities law;
(b) There is no restriction upon the right of Borrower to
transfer the Pledged Collateral to Agent in accordance with this Agreement and
the execution, delivery and performance by Borrower of the Note, this Agreement
or any of the other Loan Documents will not (i) violate, conflict with, result
in a breach of, or constitute a default under any agreement or instrument to
which Borrower is a party or by which Borrower is bound, (ii) result in the
creation or imposition of any lien, charge or encumbrance upon the Pledged
Collateral, except as to the lien created in favor of Lenders by this Agreement,
or (iii) violate any judgment, decree, order or award of any court, governmental
body or arbitrator, or any applicable law, rule or regulation; and
(c) This Agreement has been duly and validly authorized,
executed and delivered by Borrower and constitutes the legal and valid binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms.
9. BORROWER'S COVENANTS. Borrower covenants and agrees that until
Borrower's obligations under the Note, this Agreement or any of the other Loan
Documents have been fully paid and performed, Borrower shall not transfer,
assign, pledge or hypothecate (other than pursuant to this Agreement) or make or
suffer to be made any pledge, hypothecation, mortgage, lien, charge, option
3
or encumbrance of any kind on or affecting the Pledged Collateral, other than
the lien and security interest created by this Agreement in favor of Lenders.
10. VOTING RIGHTS. Borrower hereby irrevocably grants, constitutes and
appoints Agent as Borrower's proxy with respect to the Pledged Collateral, with
full power, in the same manner, to the same extent, and with the same effect as
if Borrower was to do the same, to do all things which Borrower can or could do
as a shareholder of InCon Technologies, Inc.; provided, however, that this proxy
shall not be exercisable by Agent and Borrower alone shall have the foregoing
powers, so long as there is no Event of Default under this Agreement. If any
Event of Default occurs, all rights to vote the Pledged Collateral shall
immediately and automatically pass to Agent. Borrower hereby specifically agrees
that the proxy granted hereunder is coupled with an interest and shall be and
remain irrevocable until this Agreement is terminated as provided in this
Agreement.
11. REMEDIES.
(a) Upon the occurrence of an Event of Default, Agent shall
take such action, or refrain from taking such action, with respect to such Event
of Default as Agent shall deem advisable and in the best interests of each of
Lenders. In accordance with the foregoing, Agent shall be entitled to assert or
enforce any and all rights and remedies available at law or equity, including,
without limitation, all rights and remedies of a secured party under the Uniform
Commercial Code in effect in Arizona at that time. Agent may proceed with such
rights or remedies simultaneously or consecutively, and the choice of one or
more rights or remedies shall not be construed as a waiver or election barring
any other rights or remedies, all of which rights and remedies will, to the
fullest extent permitted by law, be cumulative. Borrower agrees that in the
event notice is necessary under applicable law, any notice delivered to Borrower
in the manner specified in Section 14 hereof shall constitute reasonable notice.
(b) In the event of any public or private sale or other
disposition, Agent and Lenders are hereby relieved from any liability or claim
for inadequacy of price, provided that the sale is conducted in a commercially
reasonable manner. At any public sale or other disposition (and at any private
sale, as permitted by applicable law), any one of Lenders may purchase the whole
or any part of the Pledged Collateral or any interest therein being sold. If any
sale or other disposition is made on credit, the Pledged Collateral so sold or
disposed of shall be retained by Agent as security until the selling price is
paid by the purchaser(s). Neither Agent nor Lenders shall have any liability in
the event of failure of the purchaser(s) to take up and pay for the Pledged
Collateral sold. Agent shall have the right to resell the Pledged Collateral in
the event of a default by the purchaser(s). Agent shall give Borrower written
notice, pursuant to Section 14 hereof, at least ten (10) days prior to any sale
or other disposition of the Pledged Collateral, or any part thereof, pursuant to
this Section 11.
(c) In the event of any sale of the Pledged Collateral or any
part thereof pursuant to this Section 11, Agent shall apply the net proceeds of
the sale in the following order of priority: (i) first, to the payment of all
costs, expenses, fees and charges, including reasonable attorneys' fees and
legal expenses, incurred by Agent in connection with the collection, sale,
delivery or preservation of the Pledged Collateral on account of the occurrence
of an Event of Default, all of which costs, expenses, fees and charges shall be
deemed to be part of the obligations secured by the
4
Pledged Collateral; (ii) second, to the obligations under the terms of the Note,
this Agreement and any other Loan Document ratably to the Lenders in accordance
with their respective interests; and (iii) finally, any surplus shall be paid to
Borrower.
12. INDULGENCES, WAIVERS AND AMENDMENTS. Neither the failure nor the
delay of any party hereto to exercise any right, remedy, power or privilege
under this Agreement or any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver of
such right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver. No amendment, modification, change,
termination, waiver, release or discharge hereof and hereunder shall be
effective unless evidenced by an instrument in writing and signed by the party
against whom enforcement is sought.
13. TERMINATION; RELEASE OF PLEDGED COLLATERAL. This Agreement and the
lien and security interest granted hereby shall terminate upon the earlier of
(a) the full and complete payment and performance by Borrower of all of its
obligations under the Note, this Agreement and any other Loan Document; (b) the
written agreement of Borrower and each of the Lenders; or (c) the public or
private sale or other disposition of all the Pledged Collateral by Agent
pursuant to Section 11 hereof. When Borrower's obligations under the Note, this
Agreement and the other Loan Documents have been fully and completely paid and
performed, Agent shall immediately deliver to Borrower a release of its interest
in the Pledged Collateral.
14. NOTICES. Any notice or other communication with respect to this
Agreement shall: (a) be in writing; (b) be effective on the day of hand-delivery
thereof to the party to whom directed, one day following the day of deposit
thereof with delivery charges prepaid with a national overnight delivery
service, or two days following the day of deposit thereof with postage prepaid
with the United States Postal Service, by regular first class, certified or
registered mail; (c) if directed to Agent, be addressed to Agent at the address
of Agent set forth below Agent's name or to such other address as Agent shall
have specified by like notice; (d) if directed to Borrower, be addressed to
Borrower at the address for Borrower set forth below Borrower's name, or to such
other address as Borrower shall have specified by like notice; and (e) if
directed to one of Lenders, be addressed to Lender at the address for that
Lender set forth below Lender's name, or to such other address as Lender shall
have specified by like notice.
15. GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with laws of the State of Arizona, notwithstanding
any Arizona or other conflict-of-laws provision to the contrary.
16. JURISDICTION AND VENUE. Borrower, Agent and Lenders hereby
expressly agree that in the event any actions or other legal proceedings are
initiated by or against Borrower, Agent or Lenders involving any alleged breach
or failure by any party to pay, perform or observe any sums, obligations or
covenants to be paid, performed or observed by it under the Note, this Agreement
or the other Loan Documents, or involving any other claims or allegations
arising out of the transactions evidenced or contemplated by the Note, this
Agreement or the other Loan Documents,
5
regardless of whether such actions or proceedings shall be for damages, specific
performance or declaratory relief or otherwise, such actions may be brought in
either Maricopa County, Arizona, or Middlesex County, New Jersey, and Borrower,
Agent, and Lenders hereby submit to the jurisdiction of the State of Arizona and
State of New Jersey for such purposes and agree that the venue of such actions
or proceedings shall properly lie in Maricopa County, Arizona, or Middlesex
County, New Jersey.
17. COLLECTION COSTS AND EXPENSES. Borrower agrees to pay all costs of
collection, including, without limitation, attorneys' fees, whether or not suit
is filed, and all costs of suit and preparation for suit (whether at trial or
appellate level), in the event any payment of principal, interest or other
amount under the Loan is not paid when due, or in the event it becomes necessary
to protect the Pledged Collateral, or to exercise any other right or remedy
under the Note, this Agreement or in the Loan Documents, or in the event Agent
or Lenders are made parties to any litigation because of the existence of the
Note, this Agreement or the other Loan Documents or if at any time Lenders
should incur any attorneys' fees in any proceeding under any federal bankruptcy
law (or any similar state or federal law) in connection with the Note, this
Agreement or the other Loan Documents. In the event of any court proceeding,
attorneys' fees shall be set by the court and not by the jury and shall be
included in any judgment obtained by Agent or Lenders, as applicable.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding between the parties hereto with respect to pledging the
Pledged Collateral, and supersedes all other prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied, oral
or written, of any nature whatsoever with respect to pledging the Pledged
Collateral. The express terms hereof control and supersede any course of
performance or usage of the trade inconsistent with any of the terms hereof.
19. INCONSISTENCIES; CONFLICTS. In the event of any conflict or
inconsistency between the terms of the Note, this Agreement and any of the other
Loan Documents, the provisions of this Agreement shall govern and control to the
extent necessary to resolve such conflict or inconsistency.
20. PROVISIONS SEVERABLE. The provisions of this Agreement are
independent of and severable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
Further, if a court of competent jurisdiction determines that any provision of
this Agreement is invalid or unenforceable as written, the court may interpret,
construe, rewrite or revise such provision, to the fullest extent allowed by
law, so as to make it valid and enforceable consistent with the intent of the
parties.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original as against any
party whose signature appears thereon, and all of which will together constitute
one and the same instrument.
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
"BORROWER"
BIONUTRICS, INC., a Nevada corporation
By: /S/ XXXXXX X. XXXX
Name: Xxxxxx X. Xxxx
Title: President
Address of Borrower:
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
"AGENT"
/S/ XXXXXXX XxXXXXXXX
Xxxxxxx XxXxxxxxx
Address of Agent:
c/o Inverness
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
"LENDERS"
HEALTHSTAR HOLDINGS LLC, as a Lender
By: /S/ XXXXX XXXXXX
Name: Xxxxx Xxxxxx
Title: Managing Member
Address of HealthSTAR Holdings LLC:
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxx, as a Lender
7
/S/ XXXXXX X. XXXX
Address of Xxxxxx X. Xxxx:
0000 X. Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Xxxxxxx XxXxxxxxx, as a Lender
/S/ XXXXXXX XxXXXXXXX
Address of Xxxxxxx XxXxxxxxx:
c/o Inverness
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xiagen Ltd., as a Lender
By: /S/ XXXXXXX XxXXXXXXX
Name: Xxxxxxx XxXxxxxxx
Title: Chairman
Address of Xiagen Ltd.:
c/o Inverness
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Ropart Investments, LLC, as a Lender
By: /S/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Managing Member
Address of Ropart Investments LLC:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
8
Xxxxxxxxx X. Xxxxxxxxxx, as a Lender
/S/ XXXXXXXXX X. XXXXXXXXXX
___________________________________
Address of Xxxxxxxxx X. Xxxxxxxxxx:
X.X. Xxx 0000
Xxxx Xxxxx, XX 00000
/S/ XXXXXXX X. XXXXXXX
___________________________________
Xxxxxxx X. Xxxxxxx, as a Lender
Address of Xxxxxxx X. Xxxxxxx
000 Xxxxx Xxx.
Xxx Xxxx, XX 00000
__________________, as a Lender
___________________________________
Address of Lender
9
EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and
transfer to _________________________________ _______________________ (_______)
shares of common stock of InCon Technologies, a Delaware corporation (the
"Corporation"), represented by stock certificates No. 1 in the name of Nutrition
Technology Corporation on the books of the Corporation.
The undersigned does hereby irrevocably constitute and appoint
________________________ as its attorney-in-fact to transfer said stock on the
books of the Corporation with full power of substitution in the premises.
Dated as of _____________________.
BIONUTRICS, INC., a Nevada corporation
By: __________________________________
Name: ________________________________
Title: _______________________________
SCHEDULE A
(October 24, 2001)
Xxxxxx X. Xxxx $ 70,000
Xxxxxxx XxXxxxxxx $ 125,000
Xxxxxxxxx Xxxxxxxxxx $ 25,000
Xiagen Ltd. $ 25,000
Ropart Investments LLC $ 88,000
Xxxxxxx X. Xxxxxxx $ 100,000
PMB/Holdings $ 150,000
