Exhibit 4.6
LOAN AGREEMENT
This LOAN AGREEMENT (the "Agreement") is being entered into as
of this 9th day of July, 1997 by and between INNOPET BRANDS CORP., a Delaware
corporation ("INBC" or "Company"), with offices at One East Broward Blvd., Suite
1100, Ft. Xxxxxxxxxx, Xxxxxxx 00000 and ENTREPRENEURIAL INVESTORS, LTD., a
Bahamas company ("EIL" or the "Holder"), with offices at Xxxxxxxx Xxxxxxxx, 0xx
Xxxxx, Xxxx Xxxx Xxxxx, X.X. Xxx 00000, Freeport, Bahamas.
W I T N E S S E T H :
WHEREAS, EIL desires to loan (the "Loan") the Company $1.5
million (U.S.) (the "Funds") and the Company desires to borrow the Funds from
EIL;
WHEREAS, the Loan shall be senior to all other indebtedness of
the Company and convertible, under certain circumstances, into the common stock,
par value $.01 per share (the "Common Stock") of the Company;
WHEREAS, in connection with the Loan, the Company shall issue
warrants (the "Warrants") as described herein to EIL; and
WHEREAS, the Loan and issuance of the Warrants shall be
subject to the terms and conditions set forth below.
NOW, THEREFORE, the parties hereto, intending to be legally
bound hereby, agree as follows.
1. Loan. On the date of this Agreement, EIL shall loan the
Company the sum of $1.5 million (U.S.). The Funds shall be delivered to the
Company by wire transfer.
2. Note. (a) As evidence of the Loan, the Company shall
execute and deliver to EIL a promissory note (the "Senior Note") substantially
in the form attached hereto as Exhibit A. The Senior Note shall be senior to all
other indebtedness of the Company and shall not be subordinated.
(b) The principal of the Note shall be due on January
15, 1998 (the "Maturity Date").
(c) Interest on the Note shall accrue at the rate of
14% per annum (not compounded) and shall be due and payable on the Maturity
Date. Interest on the Note may be
paid by the Company in cash or in Common Stock, at the option of the Holder. If
the interest is paid in Common Stock, the Common Stock shall be valued at $4.50
per share.
3. Collateral. The Note will be secured and collateralized by
the Company's pledge of 600,000 shares of the Company's Common Stock (the
"Collateral"), such pledge to be evidenced by a Pledge Agreement, the form of
which is attached hereto as Exhibit B. Within five business days after the Loan
is funded, the Company hereby covenants and agrees to (i) execute the Pledge
Agreement and (ii) deliver the Pledge Agreement and the Collateral (to an escrow
agent) along with stock powers duly executed in blank. In the event that the
Company's Common Stock price as listed in the Wall Street Journal, closes at a
price less than $4.00 per share for five consecutive trading days, the Company
will promptly deposit with the escrow agent under the Pledge Agreement
additional shares of Common Stock, with stock powers duly executed in blank (the
"Additional Collateral"), so that the Collateral and the Additional Collateral
shall provide 150% coverage of the outstanding amount of the Loan.
4. Prepayment. The Loan may be prepaid, at the option of the
Company, without penalty or premium, at any time.
5. Convertibility. (a) The Holder may, at any time, at its
option, convert the debt into Common Stock, with the Common Stock valued at
$4.50 per share.
(b) Additionally, if the Common Stock price, as
listed in the Wall Street Journal, closes at a price of less than $3.00 per
share, the Holder shall have the right to take possession of the Collateral and
to liquidate the same to satisfy the conditions of the Loan.
6. Use of Proceeds.
The Company will use the Funds for the acquisition of Natural
Life Pet Products ("Natural Life") from Triple T Foods ("Triple T").
Notwithstanding the foregoing, if Triple T materially breaches the purchase
agreement between INBC and Triple T, or if Triple T does not obtain the
applicable consents or approvals required under such purchase agreement, or
Triple T fails to satisfy any material conditions to the closing of such
acquisition, or if there is a force majeure event beyond the control of the
Company, such as a flood, earthquake, or war that materially and adversely
affects the value of Natural Life, then the Company shall not be obligated to
consummate the acquisition of Natural Life. Nevertheless, even if the Natural
Life acquisition is not consummated, the Company shall remain obligated to EIL
for the Loan.
7. Registration Rights. (a) Promptly after the date hereof
(within 10 business days), the Company will file with the SEC, registration
statements for the sale of the Warrants, the shares underlying the Warrants, the
Collateral (and if applicable, the Additional Collateral), and all other shares
of Common Stock heretofore acquired by EIL.
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(b) EIL consents to the Company registering other
shares of the Company or of other selling shareholders with the foregoing
registration.
8. Warrants.
In connection with the Loan, the Company shall issue 225,000
Warrants at an exercise price of $6 per share.
9. EIL's Representations and Comments.
EIL represents, warrants, and covenants to INBC as follows:
(a) This Agreement has been duly authorized, validly
executed, and delivered on behalf of EIL and is the valid and binding agreement
of EIL enforceable in accordance with its terms.
(b) EIL has received and carefully reviewed copies of
the Public Documents (as defined in Section 10). EIL understands that the Loan
is being made only by means of this Agreement. No representations or warranties
have been made to EIL by INBC, the officers or directors of INBC, or any agent,
employee or affiliate of INBC, except as specifically set forth herein or as set
forth in documents referenced herein. EIL is aware that the Loan involves a high
degree of risk and that it may sustain, and has the financial ability to
sustain, the loss of the entire amount of the Loan. EIL has had the opportunity
to ask questions of, and receive answers satisfactory to it from, INBC's
management regarding INBC. EIL understands that no federal or state governmental
authority has made any finding or determination relating to the fairness of an
investment in the Loan and that no federal or state governmental authority has
recommended or endorsed, or will recommend or endorse, the Loan. EIL, in making
the decision to make the Loan, has relied upon independent investigation made by
it and has not relied on any information or representations made by third
parties. EIL has significant assets and upon consummation of the Loan will
continue to have significant assets exclusive of the Note. EIL has not been
organized for the sole purpose of making the Loan.
(c) EIL is an "accredited investor" within the
meaning of Rule 501 of Regulation D promulgated under the Securities Act of
1933, as amended (the "Securities Act").
(d) EIL understands that the Loan is being made in
reliance on specific provisions of federal and state securities laws and that
the Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgements and understandings of EIL set forth
herein in order to determine the applicability of such provisions.
(e) EIL agrees that for a period of two (2) years
from the date of the funding of the Loan it shall not offer, sell, contract to
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sell, grant any option to purchase or otherwise dispose of any Common Stock
(any of the foregoing, a "Short-Sale") that EIL does not own as of the date of
the funding of the Loan.
(f) EIL is capable of evaluating the risks and merits
of this Loan by virtue of its experience as an investor and its knowledge,
experience, and sophistication in financial and business matters.
(g) EIL has not employed any investment banker,
broker, or finder or incurred any liability for any brokerage fees, commissions,
or finder's fees in connection with the transactions contemplated by this
Agreement; and
10. Company's Representations and Covenants.
The Company represents, warrants, and covenants to EIL as
follows:
(a) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its properties
and to conduct its business as currently conducted, and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure to
register or qualify is not reasonably anticipated to have a material adverse
effect on the condition (financial or otherwise), business, properties, net
worth or results of operations of INBC.
(b) INBC has registered shares of its Common Stock
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), is in full compliance with all reporting requirements of the
Exchange Act, and the Common Stock is quoted on the Nasdaq SmallCap Market
(trading symbol INBC).
(c) INBC has furnished EIL with copies of INBC's
Prospectus dated December 5, 1996, its most recent Annual Report on Form 10-K
filed with the Securities and Exchange Commission (the "Commission") and all
Forms 10-Q and 8-K filed thereafter, if any (collectively, the "Public
Documents"). The Public Documents at the time of their filing did not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
(d) This Agreement has been duly authorized, validly
executed and delivered on behalf of INBC and is the valid and binding agreement
of INBC enforceable in accordance with its terms.
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(e) INBC has not employed any investment banker,
broker, or finder or incurred any liability for any brokerage fees, commissions,
or finder's fees in connection with the transactions contemplated by this
Agreement.
11. Miscellaneous.
(a) This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of Delaware, without
giving effect to the rules governing the conflicts of laws.
(b) This Agreement may be executed by facsimile
signature and in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(c) Each of the parties agrees to pay its own
expenses incident to this Agreement and the performance of its obligations
hereunder, including, without limitation, the fees and expenses of each such
party's legal counsel.
(d) All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, express
overnight courier, registered first class mail, overnight courier, or
telecopied, initially to the address set forth below, and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 11.
if to INBC:
InnoPet Brands Corp.
Xxx Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxx, Chairman and CEO
Telephone: 000-000-0000
Telecopier: 000-000-0000
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if to EIL:
Entrepreneurial Investors, Ltd.
Xxxxxxxx Xxxxxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxxx
X.X. Xxx 00000
Freeport, Bahamas
Attn: Xx. Xxxxxx X. Xxxxxx, Director
Telephone: 000-000-0000
Telecopier: 000-000-0000
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; three (3) business days after
being deposited in the mail, postage prepaid, if mailed; the next business day
after being deposited with an overnight courier, if deposited with a nationally
recognized, overnight courier service; when receipt is acknowledged, if
telecopied.
(e) This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof and supersedes all
prior oral or written proposals or agreements relating thereto. This Agreement
may not be amended or any provision hereof waived in whole or in part, except by
a written amendment signed by both of the parties.
IN WITNESS WHEREOF, this Agreement was duly executed on the
date first written above.
INNOPET BRANDS CORP.
By:
--------------------------------------
Name: Xxxx Xxxx
Title: Chief Executive Officer
ENTREPRENEURIAL INVESTORS, LTD.
By:
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
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EXHIBIT A
SENIOR CONVERTIBLE NOTE
$1,500,000 Ft. Lauderdale, Florida
14.0% July __, 1997
FOR VALUE RECEIVED, the undersigned, INNOPET BRANDS CORP.
("Maker"), promises to pay to the order of Entrepreneurial Investors Ltd.
("Payee") at Freeport, Bahamas, or at such other place as Payee may from time to
time designate by written notice to Maker, in lawful money of the United States
of America, the sum of One Million Five Hundred Thousand Dollars ($1,500,000),
plus interest from the date of this Note on the unpaid balance.
Maker further agrees as follows:
Section 1. Interest Rate.
(a) Interest shall accrue at a rate equal to:
Fourteen percent (14%) per annum (not compounded).
(b) Interest shall be computed on the basis of a year of 365
days for the actual number of days elapsed.
(c) All agreements between Maker and Payee are expressly
limited so that in no contingency or event whatsoever shall the amount paid or
agreed to be paid to Payee for the use, forbearance, or detention of the
indebtedness evidenced by this Note shall exceed the maximum amount permissible
under applicable law. If from any circumstance Payee should ever receive as
interest or imputed interest an amount which would exceed the highest lawful
rate, such amount as would be excessive interest shall be applied to the
reduction of the principal amount owing under this Note and not to the payment
of interest.
(d) Interest may be paid in cash or Common Stock of the Maker,
at the option of the Payee. For purposes of this Section 1(d), if the interest
is paid in Common Stock, the Common Stock shall be valued at $4.50 per share.
Section 2. Payments.
(a) On January 15, 1998, all outstanding amounts owing under
this Note, including accrued interest and the outstanding principal, shall be
paid. All payments shall be applied first to accrued interest and then to
principal.
(b) Maker shall have the right to prepay this Note in full or
in part at any time, without premium or penalty. All prepayments shall be
applied first to accrued interest and then to principal. Any prepayment shall
not be less than One Hundred Thousand Dollars ($100,000.00).
Section 3. Security.
This Note is secured by and entitled to the benefits of
600,000 shares of Common Stock (the "Collateral") of the Maker that will be
deposited with Cardinal International Corporation, Ltd. (the "Escrow Agent")
within five business days of the date of this Note. In the event that the
Maker's Common Stock price, as listed in the Wall Street Journal, closes at a
price less than $4.00 per share for five (5) consecutive trading days, the
Company will deposit additional shares of Common Stock (the "Additional
Collateral") so that the Collateral and the Additional Collateral shall provide
150% coverage on the amount of indebtedness.
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Section 4. Default.
It shall be an event of default ("Event of Default"), and the
entire unpaid principal of this Note, together with accrued interest, shall
become immediately due and payable, at the election of Payee, upon the
occurrence of any of the following events:
(a) Any failure on the part of Maker to make any payment when
due, whether by acceleration or otherwise, and the continuation of such failure
for a period of ten (10) days after written notice thereof from Payee.
(b) Any failure on the part of Maker to keep or perform any of
the terms or provisions of this Note or any amendment thereof, or any other
documents evidencing, governing, or securing this Note and the continuation of
such failure for more than twenty (20) days after written notice thereof from
Payee. Notwithstanding the foregoing, if the breach cannot be cured within
twenty (20) days, Maker shall not be in default so long as Maker, upon written
notice from Payee, commences cure and thereafter diligently and continuously
proceeds to completion.
(c) Maker shall commence (or take any action for the purpose
of commencing) any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, moratorium or similar law or statute.
(d) A proceeding shall be commenced against Maker under any
bankruptcy, reorganization, arrangement, readjustment of debt, moratorium or
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similar law or statute and relief is ordered against it, or the proceeding is
controverted but is not dismissed within sixty (60) days after the commencement
thereof.
(e) Maker consents to or suffers the appointment of a
receiver, trustee or custodian to any substantial part of its assets that is not
vacated within sixty (60) days.
Section 5. Subordination.
This Note shall be a general obligation of Maker and is senior
and not subordinated to any and all obligations of Maker (e.g., to any bank or
other financial institution), regardless of whether such obligations are
presently existing or are subsequently incurred.
Section 6. Convertibility.
(a) Upon maturity, the Holder may, at its option, convert the
debt into Common Stock, with the Common Stock valued at $4.50 per share.
(b) Additionally, if the Common Stock, as listed in the Wall
Street Journal, closes at a price of less than $3.00 per share, the Payee shall
have the right to take possession of the Collateral and to liquidate the same to
satisfy the conditions of the Note.
Section 7. Waivers.
Maker waives demand, presentment, protest, notice of protest,
notice of dishonor, and all other notices or demands of any kind or nature with
respect to this Note.
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Section 8. Assignment of Note.
Neither Maker nor Payee may assign or transfer this Note in
any manner whatsoever. Any such purported assignment shall be void ab initio.
Section 9. Miscellaneous.
(a) This Note may be altered only by prior written agreement
signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought. This Note may not be modified by an oral
agreement, even if supported by new consideration.
(b) This Note shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to
such state's principles of the conflict of laws.
(c) All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, express overnight
courier, registered first class mail, overnight courier, or telecopied,
initially to the address set forth below, and thereafter at such other address,
notice of which is given in accordance with the provisions of this Section 9(c).
if to INBC:
InnoPet Brands Corp.
Xxx Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxx, Chairman and CEO
Telephone: 000-000-0000
Telecopier: 000-000-0000
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if to EIL:
Entrepreneurial Investors, Ltd.
Xxxxxxxx Xxxxxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxxx
X.X. Xxx 00000
Freeport, Bahamas
Attn: Xx. Xxxxxx X. Xxxxxx, Director
Telephone: 000-000-0000
Telecopier: 000-000-0000
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; three (3) business days after
being deposited in the mail, postage prepaid, if mailed; the next business day
after being deposited with an overnight courier, if deposited with a nationally
recognized, overnight courier service; when receipt is acknowledged, if
telecopied.
IN WITNESS WHEREOF, Maker has executed this Note effective as
of the date first set forth above.
MAKER: INNOPET BRANDS CORP.
-----------------------------------
Name: Xxxx Xxxx
Title: Chairman and CEO
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Exhibit B
PLEDGE AGREEMENT
This Pledge Agreement (the "Agreement") dated as of the 9th
day of July, 1997, is made by and between INNOPET BRANDS CORP., a Delaware
corporation (the "Debtor") and ENTREPRENEURIAL INVESTORS, LTD. (the "Secured
Party").
INTRODUCTORY PROVISIONS:
A. The Debtor has this day executed a Senior Convertible Note
(the "Note"), payable to the order of the Secured Party, which Note evidences a
loan from Secured Party to the Debtor in the original principal amount thereof
(the "Loan"). The Loan is further evidenced by that certain Loan Agreement of
even date herewith (the "Loan Agreement") by and between Debtor and Secured
Party.
B. As a condition to the making of the Loan to the Debtor, the
Secured Party requires that the Debtor pledge to and grant a security interest
in certain shares of stock to secure the payment and performance of the Note.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged and confessed, the parties hereto agree as follows:
1. The Pledge and Security Interest. The Debtor hereby grants
to the Secured Party security interests in and to any and all present or future
rights of the Debtor in and to all of the following rights, interests, and
property (all of the following being herein sometimes called the "Collateral"):
(a) 600,000 shares of the common stock, $.01 par value per share, of InnoPet
Brands Corp. represented by Certificate(s) No. _____ registered in the name of
Debtor (the "Stock Certificate"), and any and all substitutes, replacements,
accessions, attachments, increase, profits, revisions, or additions thereto; and
(b) any and all proceeds arising from or by virtue of the sale or other
disposition of, or from the collection of, the Collateral described in (a)
preceding.
2. The Indebtedness. This Agreement is being executed and
delivered to secure and the security interests herein granted (the "Security
Interests") shall secure full payment and performance of all of the indebtedness
and obligations owing to the Secured Party by the Debtor under the Note,
together with any and all renewals and extensions of the same, or any part
thereof (the "Indebtedness").
3. Representations and Warranties of the Debtor. The Debtor
represents and warrants to the Secured Party that: (a) the Security Interests
are first and prior security interests in and to all of the Collateral; (b) the
Debtor is the owner of the Collateral; (c) no dispute, right of set off,
counterclaim, or defenses exist with respect to all or any part of the
Collateral; and (d) the shares represented by the Stock Certificate were duly
authorized treasury shares and are fully paid and non-assessable. The delivery
at any time by the Debtor to the Secured Party of Collateral shall constitute a
representation and warranty by the Debtor under this Agreement that the matters
heretofore warranted in clause (a) of this paragraph remain true and correct.
4. Negative Covenants of the Debtor. The Debtor further
covenants and agrees that, without the prior written consent of the Secured
Party, the Debtor will not (a) sell, assign or transfer any of the Debtor's
rights in the Collateral, and (b) create any other security interest in,
mortgage or otherwise encumber the Collateral, or any part thereof, or permit
the same to be or become subject to any lien, attachment, execution,
sequestration, other legal or equitable process or any encumbrance of any kind
or character, except the security interest herein created.
5. Delivery of Collateral to the Escrow Agent. The Debtor,
simultaneously with the execution of this Agreement, is delivering to Cardinal
International Corporation, Ltd. (the "Escrow Agent") at their offices located at
Xxxxxxx Xxxxx, 0xx Xxxxx, Nassau, Bahamas, or at such other escrow agent chosen
by Secured Party and reasonably acceptable to Debtor, stock certificates,
endorsed in blank for transfer or accompanied by stock powers appropriate for
transfer, evidencing the collateral to be held by the Escrow Agent in accordance
with the terms and provisions of an Escrow Agreement (herein so called) between
Debtor, Secured Party and the Escrow Agent.
6. Default. As used herein, the term "Default" or "Event of
Default" means the occurrence of one or more of the following: (a) the failure
to timely pay or perform any obligations or covenants contained herein, in the
Loan Agreement or in the Note secured hereby (after any applicable notice or
grace period); (b) any warranty, representation or statement made or furnished
to the Secured Party by or in behalf of the Debtor is incorrect in any material
respect (which remains incorrect after any applicable cure period); (c) the
sale, loss, theft, destruction, encumbrance or transfer of any of the Collateral
in violation hereof, or substantial damage to any of the Collateral; (d) the
dissolution, merger or consolidation, termination of existence, or business
failure of the Debtor; (e) appointment of a receiver for any part of the
Collateral; (f) assignment for the benefit of creditors or the commencement of
any proceeding under any bankruptcy or insolvency law by or against the Debtor
or any partnership of which the Debtor is a partner or by or against any maker,
or upon the Collateral; (g) the levy on, seizure or attachment of the
Collateral, or any part thereof; (h) the filing of any financing statement with
regard to the Collateral, other than relating to the security interest herein
created; or (i) attachment of any lien or security interest, except a lien for
current ad valorem taxes not yet due and the security interests hereunder, to
any portion of the Collateral.
7. Remedies. Upon the occurrence of any Default, in addition
to any and all other rights and remedies which the Secured Party may then have
hereunder, under the Uniform Commercial Code of the State of Delaware or of any
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other pertinent jurisdiction (the "Code"), or otherwise, the Secured Party may,
at its option: (a) reduce its claim to judgment or foreclose or otherwise
enforce the Security Interests, in whole or in part, by any available judicial
procedure; (b) after notification, if any, provided for herein, sell, lease or
otherwise dispose of, at the office of the Secured Party, on the premises of the
Debtor, or elsewhere, all or any part of the Collateral, in its then condition
or following any commercially reasonable preparation or processing, and any such
sale or other disposition may be as a unit or in parcels, by public or private
proceedings, and by way of one or more contracts (it being agreed that the sale
of any part of the Collateral shall not exhaust the Secured Party's power of
sale, but sales may be made from time to time, and at any time, until all of the
Collateral has been sold or until the Indebtedness has been paid and performed
in full), and at any such sale it shall not be necessary to exhibit any of the
Collateral; (c) at its discretion, vote the shares of stock included in the
Collateral; and (d) exercise any and all other rights, remedies,and privileges
it may have under any document which secures the Indebtedness.
In the event any consent, approval or authorization of any
governmental agency (other than an agency regulating the sale of securities
under applicable securities laws) shall be necessary to enforce the Security
Interests or sell, lease or otherwise dispose of or retain the Collateral, the
Debtor shall execute and file all such applications or other instruments as may
be reasonably required. In the event of a sale of all or part of the Collateral,
public or private, the Debtor shall pay all costs and expenses of every kind of
sale or delivery, including brokers' and attorneys' fees and all expenses
incurred by Secured Party in protecting and enforcing its rights under this
Agreement or the Note.
Any and all proceeds ever received by any Secured Party from
any sale or other disposition of the Collateral, or any part thereof, or the
exercise of any other remedy pursuant hereto shall be applied by the Secured
Party to the Indebtedness in such order and manner as the Secured Party, in its
sole discretion, may deem appropriate, notwithstanding any directions or
instructions to the contrary by the Debtor.
With respect to any part of the Collateral which is stock
certificates, bonds, or other securities, the Secured Party shall have
authority, upon the occurrence of any Default, without notice to the Debtor,
either to have them registered in the Secured Party's name, or in the name of a
nominee, and, with or without such registration, to demand of the corporation or
association issuing the same, and to receive and receipt for, any and all
dividends and other distributions payable in respect thereof, regardless of the
medium in which paid and whether they be ordinary or extraordinary. Any entity
making payment to the Secured Party hereunder shall be fully protected in
relying upon the written statement of the Secured Party that the Secured Party
then holds the Security Interests which entitles it to receive such payment, and
the receipt of the Secured Party for such payment shall be full acquittance
therefor to the person making such payment.
8. Notice. Reasonable notification of the time and place of
any public sale of the Collateral, or reasonable notification of the time after
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which any private sale or other intended disposition of the Collateral, or
reasonable notification of the time after which any private sale or other
intended disposition of the Collateral is to be made (including retention
thereof in satisfaction of the Indebtedness), shall be sent to the Debtor and to
any other person entitled under the Code to notice. It is agreed that notice
sent or given at least ten (10) calendar days prior to the taking of the action
to which the notice relates is reasonable notification and notice for the
purposes of this paragraph.
9. Limitations on Interest. It being the intention of the
parties hereto to strictly conform to the applicable usury laws, all agreements
between the Debtor and the Secured Party, whether now existing or hereafter
arising and whether written or oral, are hereby expressly limited so that in no
event, whether by reason of acceleration of the maturity of the Note or
otherwise, shall the amount paid, or agreed to be paid to the Secured Party for
the use, forbearance or detention of money hereunder or otherwise exceed the
maximum rate permitted by applicable law. If due to any circumstance or reason
whatsoever, fulfillment of any provision hereof or of the Note or of any
mortgage, loan agreement, or other document evidencing or securing the
indebtedness evidenced by the Note, at the time performance of such provision
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 the Secured Party shall ever receive anything of
value deemed interest under the applicable law which would exceed interest at
the maximum rate permitted by applicable law, such amount which would have been
excessive interest shall instead automatically be applied to the reduction of
the principal amount owing under the Note in the inverse order of its maturity
and not to the payment of interest, and if such amount which would have been
excessive interest exceeds the unpaid balance of principal of the Note, such
excess shall be refunded to the Debtor. All sums paid or agreed to be paid to
the Secured Party for the use, forbearance or detention of the indebtedness of
the Debtor to the Secured Party shall, to the extent permitted by applicable
law, be amortized, prorated, allocated and spread throughout the full stated
term of such indebtedness so that the rate of interest on such indebtedness does
not exceed the maximum permitted by applicable law. The provisions of this
paragraph shall control all agreements between the Debtor and the Secured Party.
10. Rights Cumulative. All rights and remedies of the Secured
Party hereunder are cumulative of each other and of every other right or remedy
which the Secured Party may otherwise have at law or in equity or under any
other contract or other writing for the enforcement of the security interest
herein or in the collection of the Note or the Indebtedness, and the exercise of
one or more rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
11. Assignment. The rights, powers and interests held by the
Secured Party hereunder, together with the Collateral, may be transferred and
assigned by the Secured Party, in whole or in part, at such time and upon such
terms as the Secured Party may deem advisable.
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12. No Waivers. No failure on the part of the Secured Party to
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise by the
Secured Party of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
13. Binding Effect. This Agreement shall be binding on the
Debtor and the Debtor's successors and assigns and shall inure to the benefit of
the Secured Party, and the Secured Party's successors and assigns.
14. Termination. This Agreement and the security interest in
the Collateral will terminate when the Indebtedness secured hereby has been paid
in full by extinguishment thereof but not by renewal, modification or extension
thereof.
15. Governing Law. The law governing this Agreement will be
that of the State of Delaware in force on the date of execution of this
Agreement. All obligations of the Debtor under the terms of this Agreement shall
be performable in Delaware.
16. Notice. Any notice, request, instruction or other document
required or permitted to be delivered hereunder by either party hereto to the
other will be made in writing by hand delivery, express overnight courier,
registered first class mail, overnight courier, or telecopier, initially to the
address set forth below, and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 19:
To the Debtor: InnoPet Brands Corp.
Xxx Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxx, Chairman and CEO
Telephone: 000-000-0000
Telecopier: 000-000-0000
To the Secured Party: Entrepreneurial Investors, Ltd.
Xxxxxxx Xxxxxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxxx
X.X. Xxx 00000
Freeport, Bahamas
Attn: Xx. Xxxxxx X. Xxxxxx, Director
Telephone: 000-000-0000
Telecopier: 000-000-0000
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; three (3) business days after
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being deposited in the mail, postage prepaid, if mailed; the next business day
after being deposited with an overnight courier, if deposited with a nationally
recognized overnight courier service; when receipt if acknowledged, if
telecopied.
17. Agreement as Financing Statement. The Secured Party shall
have the right at any time to execute and file this Agreement as a financing
statement, but the failure of the Secured Party to do so shall not impair the
validity or enforceability of this Agreement.
DEBTOR:
INNOPET BRANDS CORP.,
a Delaware Corporation
By:
----------------------------------------
Xxxx Xxxx, Chief Executive Officer
SECURED PARTY:
ENTREPRENEURIAL INVESTORS, LTD.
By:
----------------------------------------
Xxxxxx X. Xxxxxx, Director
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