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EXHIBIT 10.18
AIRCRAFT SECURITY AGREEMENT
THIS AIRCRAFT SECURITY AGREEMENT ("AGREEMENT") is made and entered into as of
4/29/99, by and between RIDGEBURY FUNDING, L.L.C., a Delaware limited liability
company, having an office at 0000 XXXXXXXX XXXXXXXXX XXXXX 000, XXXXXXXXXX, XX
(together with its successors and assigns, if any, "SECURED PARTY") and UNITED
FOODS, INC., a corporation organized and existing under the laws of the State of
Delaware and having its chief executive offices located at TEN XXXXXXXXX XXXXX,
X.X. XXX 000, XXXXX, XX 00000-0000 ("DEBTOR").
1. GRANT OF SECURITY INTEREST. To secure Debtor's payment and performance of any
and all debts, obligations and liabilities of any kind, nature or description
whatsoever (whether due or to become due) of Debtor to Secured Party, including
but not limited to those arising under the promissory note of even date herewith
(the "NOTE"), this Agreement, and/or any related documents (the Note, this
Agreement and all such related documents being hereinafter collectively referred
to as the "DEBT DOCUMENTS"), and any renewals, extensions, replacements and
modifications of such debts, obligations and liabilities (all of the foregoing
being hereinafter referred to as the "OBLIGATIONS"), Debtor grants to Secured
Party a security interest in the aircraft and other property described below and
in all additions and accessions thereto as more fully described in the Schedule
(attached hereto) and substitutions therefor, now or hereafter owned, all
unearned insurance premiums and insurance proceeds relating to such property,
and the proceeds of all of the foregoing (all of such property and proceeds are
collectively referred to as the "Aircraft"):
AIRCRAFT MAKE: CESSNA; MODEL NO.: 650; SERIAL NO.: 650-0001; REGISTRATION NO.:
N651CC; ENGINE MAKE: XXXXXXX; MODEL NO.: TFE-731-3C-100S WITH MSP; SERIAL
NUMBERS: P-87180 4897 TT, P-87182 4897 TT; PROPELLER MAKE: N/A; MODEL NO.: N/A;
SERIAL NUMBERS: N/A; TOGETHER WITH ALL OTHER PROPERTY ESSENTIAL AND APPROPRIATE
TO THE OPERATION OF THE AIRCRAFT, INCLUDING BUT NOT LIMITED TO ALL INSTRUMENTS,
AVIONICS, EQUIPMENT AND ACCESSORIES ATTACHED TO AND CONNECTED WITH THE AIRCRAFT,
AND ALL LOGS, MANUALS AND OTHER DOCUMENTS ISSUED FOR, OR REFLECTING USE OR
MAINTENANCE OF, THE AIRCRAFT.
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Notwithstanding anything to the contrary in this Agreement or any other Debt
Document, if no event of default has occurred and is continuing under this
Agreement, the Note or the Debt Documents, upon payment in full of all amounts
owing by Debtor under the Note, the security interest of Secured Party in the
Aircraft will immediately terminate.
2. HOME AIRPORT. The home airport of the Aircraft will be:
XXXXXXXX AIRPORT, JACKSON, MADISON COUNTY, TN, and will not be changed without
the prior written consent of Secured Party.
(Name of Airport, Township, County, State)
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR. Debtor represents,
warrants and covenants that:
(a) Debtor (i) is, and will remain, duly organized, existing and in good
standing under the laws of the State set forth in the preamble of this
Agreement, (ii) has its chief executive offices at the location set forth in
such paragraph, (iii) is, and will remain, duly qualified and licensed in every
jurisdiction wherever necessary to carry on its business and operations, and
(iv) is and will continue to be a "citizen of the United States", within the
meaning of the Title 49, Subtitle VII of the United States Code, as amended (the
"FAA ACT"), and the regulations thereunder so long as any Obligations are due to
Secured Party under the Debt Documents or otherwise;
(b) Debtor has adequate power and capacity to enter into, and to perform its
obligations under, each of the Debt Documents and has full right and lawful
authority to grant the security interest described in this Agreement;
(c) The Debt Documents have been duly authorized, executed and delivered by
Debtor and constitute legal, valid and binding agreements enforceable under all
applicable laws in accordance with their terms, except to the extent that the
enforcement of remedies may be limited under applicable bankruptcy and
insolvency laws;
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(d) No approval, consent or withholding of objections is required from any
governmental authority or instrumentality or any other entity with respect to
the entry into, or performance by, Debtor of any of the Debt Documents, except
such as have already been obtained;
(e) The entry into, and performance by, Debtor of the Debt Documents will not
(i) violate any of Debtor's organizational documents or any judgment, order, law
or regulation applicable to Debtor, or (ii) result in any breach of, constitute
a default under, or result in the creation of, any lien, claim or encumbrance on
any of Debtor's property (except for liens in favor of Secured Party) pursuant
to, any indenture mortgage, deed of trust, bank loan, credit agreement, or other
agreement or instrument to which Debtor is a party;
(f) Except as disclosed to Secured Party, there are no suits or proceedings
pending or threatened in court or before any commission, board or other
administrative agency against or affecting Debtor which could, in the aggregate,
have a material adverse effect on Debtor, its business or operations, or its
ability to perform its obligations under the Debt Documents;
(g) All audited financial statements delivered to Secured Party in connection
with the Obligations have been prepared in accordance with generally accepted
accounting principles, and since the date of the most recent financial statement
there has been no material adverse change in Debtor's financial condition or
business prospects;
(h) Debtor is (or, to the extent that the Aircraft is to be acquired hereafter,
will be) and will remain the sole lawful owner, in sole, open and notorious
possession of the Aircraft, free from any security interest, lien or encumbrance
whatsoever other than those in favor of Secured Party and Debtor shall defend
the Aircraft against all claims and demands of all other persons claiming any
interest therein;
(i) Debtor shall promptly pay or cause to be paid all taxes, license fees,
assessments and public and private charges, that are or may be levied or
assessed on or against the Aircraft or the ownership or use thereof, or on this
Agreement;
(j) if at the time of Debtor's execution of this Agreement, Debtor is not the
registered owner of the Aircraft, as shown in the records of the United States
Federal Aviation Administration ("FAA"), Debtor at
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its own expense shall immediately register the Aircraft in its name with the FAA
and, so long as any Obligation is due to Secured Party, Debtor shall not impair
such registration or cause it to be impaired, suspended or cancelled, nor
register the Aircraft under the laws of any country except the United States of
America.
(k) Debtor shall promptly notify Secured Party of any facts or occurrences which
do or, by passage of time or otherwise will, constitute a breach of any of the
above warranties and covenants;
4. DEBTOR SHALL EXECUTE AND DELIVER DOCUMENTS. Debtor shall, at Secured Party's
request, furnish Secured Party such information and execute and deliver to
Secured Party such documents and do all such acts and things as Secured Party
may reasonably request as necessary or appropriate to establish and maintain a
valid first priority security interest in the Aircraft and to assure that the
Aircraft is titled, registered and the security interest perfected to Secured
Party's satisfaction. Debtor shall pay the cost of filing all appropriate
documents in all public offices where Secured Party deems such filings necessary
or desirable.
5. USE, OPERATION, MAINTENANCE AND REPAIR. Debtor shall use, operate, maintain
and repair the Aircraft and retain actual and operational control and possession
thereof in compliance with the following provisions:
(a) Debtor shall use, operate, maintain and store the Aircraft, and every part
thereof, properly, carefully and in compliance with all applicable statutes,
ordinances and regulations of all jurisdictions in which the Aircraft is
operated or used, as well as all applicable insurance policies, manufacturer's
recommendations and operating and maintenance manuals. Debtor shall use the
Aircraft predominantly for business purposes and only for the purposes and in
the manner set forth in the application for insurance executed at the time of
negotiating the purchase of the Aircraft. At all times during the term of this
Agreement, Debtor shall not operate or locate the aircraft, or suffer or permit
the aircraft to be operated, located, or otherwise permitted to go into or over
(i) any area of hostilities, or (ii) any geographic area which is not covered by
the insurance policies required by this Agreement. Notwithstanding the
foregoing, in no event shall the Aircraft be located or operated in Cuba or over
Cuba (unless in compliance with all applicable federal regulations), or outside
of the continent of North America and the Caribbean. The engines identified in
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Section 1 of this Agreement shall be used only on the airframe described in that
Section and shall only be removed for maintenance in accordance with the
provisions of this Agreement. Debtor shall not use, attempt to use, or suffer
the Aircraft to be used in any manner which may or does contravene any
applicable law, rule or regulation governing the Aircraft, including without
limitation those relating to intoxicating liquors, narcotics, firearms or
similar products, and shall not attempt to sell, lease, rent, assign or dispose
of the Aircraft, or any interest herein or therein, or any part thereof, without
Secured Party's prior written consent.
(b) The Aircraft will be operated at all times by a currently certificated pilot
having the minimum total pilot hours and minimum pilot-in-command hours required
by FAA rules or regulations or as required by applicable insurance policies,
whichever requirements are stricter. Debtor shall be responsible for and pay for
all expenses of owning and operating the Aircraft, including but not limited to
storage, fuel, lubricants, service, inspections, overhauls, replacements,
maintenance and repairs, all in compliance with the manufacturer's operating and
maintenance manuals and with FAA rules and regulations. Debtor shall properly
maintain all records and other materials pertaining to the maintenance and
operation of the Aircraft, including but not limited to those required by
applicable law, rule or regulation and by the manufacturer for the enforcement
of any warranty.
(c) The Aircraft is and shall at all times be maintained by Debtor at its
expense in good repair in the configuration and condition existing on the date
hereof, and in airworthy condition necessary for all aircraft licenses under the
laws, ordinances, rules and regulations of all jurisdictions in which the
Aircraft will at any time be operated. Debtor shall ensure timely compliance
with all applicable mandatory Service Bulletins, Service Letters, Manufacturer's
Directives and Airworthiness Directives. Debtor shall submit written evidence of
such maintenance and condition to Secured Party upon its written request from
time to time. Debtor shall use reasonable care to prevent the Aircraft from
being damaged or injured, and shall promptly (but in no event later than 60 days
after discovery) replace any part or component of the Aircraft which may be
damaged, worn out, lost, destroyed, confiscated or otherwise rendered
unsatisfactory or unavailable for use in or upon the Aircraft.
(d) Debtor shall at its expense timely make any alterations or modifications to
the Aircraft that may at any time during the term of this Agreement be required
to maintain the Aircraft in the condition required by
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this Agreement. Debtor shall in no way alter, attempt to alter or otherwise
change the identity or appearance of the Aircraft, including but not limited to
the "N" number, exterior paint and symbols, without the express prior written
consent of Secured Party.
6. INDEMNIFICATION AND INSURANCE.
(a) Debtor shall indemnify and save Secured Party harmless from and against all
claims, expenses, damages and liabilities whatsoever, including without
limitation personal injury, death and property damage claims arising in tort or
otherwise, under any legal theory including but not limited to strict liability,
in any manner occasioned by or related to the Aircraft, its operation, use,
ownership, possession, manufacture or otherwise.
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(b) Debtor shall at all times bear all risk of loss, damage, destruction or
confiscation of or to the Aircraft. Debtor shall, at its own expense, keep the
Aircraft insured at all times against confiscation, expropriation, and all
physical damage to the Aircraft including damage or destruction by fire, theft,
crash, vandalism, and all other causes with standard loss payable clause and
breach of warranty endorsement in favor of Secured Party and shall carry
liability insurance, all of which shall be in such amounts, under such forms of
policies, upon such terms, for such periods and with such companies or
underwriters as Secured Party may approve, losses or refunds in all cases to be
first payable to Secured Party or its assigns, as its interest may appear.
Notwithstanding any provision of this Agreement to the contrary, failure to
obtain Secured Party's approval of any insurer or policy shall not excuse Debtor
from its obligation to maintain insurance coverage. In no event shall the
amounts of such insurance be less than the principal amount of the Note. All
insurance policies shall provide for at least 30 days prior written notice to
Secured Party of any cancellation or material modification, shall contain a
severability of interest clause providing that such policy shall operate in the
same manner as if a separate policy covered each insured, shall waive any right
of set-off against Debtor or Secured Party, shall waive any right of subrogation
against Secured Party and shall be primary and not subject to any offset by any
other insurance carried by Debtor or Secured Party. Debtor shall pay any
deductible portion of such insurance and any expense incurred in collecting
insurance proceeds. Debtor shall furnish to Secured Party copies of all
insurance policies required by this paragraph. Debtor hereby assigns to Secured
Party the proceeds of all such insurance (including any refund of premium) to
the extent of the Obligations secured hereby, directs the insurer to pay any
losses or refunds due Debtor directly to Secured Party, and appoints Secured
Party as attorney-in-fact to make proof of loss and claim for all insurance and
refunds thereupon and to endorse all documents, contracts drafts, checks or
forms of payment of insurance or premiums. Upon the occurrence of a default
hereunder, Secured Party may at its option apply insurance proceeds, in whole or
in part, to (i) repair or replace the Aircraft or any part thereof or (ii)
satisfy any of Debtor's Obligations to Secured Party. Any surplus proceeds shall
be paid to Debtor.
7. DEBTOR'S POSSESSION. Until default, Debtor may possess the Aircraft and use
it in any lawful manner not inconsistent with this agreement. Debtor shall at
all times keep the Aircraft and any proceeds therefrom separate and distinct
from other property of the Debtor and shall keep accurate and complete records
of the Aircraft and all such proceeds. Secured Party may examine and inspect the
Aircraft, wherever located, at any reasonable time, on land and in flight.
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8. DEFAULT. Debtor shall be in default under this Agreement and each of the
other Debt Documents upon the occurrence of any of the following Events of
Default:
(a) Debtor fails to pay within 10 days after its due date any installment or
other amount due or coming due under any of the Debt Documents and such failure
continues for more than 10 days after Secured Party gives Debtor written notice
thereof;
(b) Debtor fails to maintain at all times insurance coverage as required by
paragraph 6(b) of this Agreement;
(c) Any attempt by Debtor, without the prior written consent of Secured Party,
to sell, rent, lease, mortgage, grant a security interest in or otherwise
deliver possession of (except for maintenance purposes), transfer or encumber
the Aircraft;
(d) Debtor breaches any of its other Obligations under any Debt Document and
fails to cure the breach within 30 days after Secured Party gives Debtor written
notice thereof;
(e) Any warranty, representation or statement made by Debtor in any of the Debt
Documents or otherwise in connection with any of the Obligations is false or
misleading in any material respect;
(f) Debtor or any guarantor or surety for the Obligations dies, becomes
insolvent or ceases to do business as a going concern;
(g) The Aircraft or any other property of Debtor is confiscated, sequestered,
seized or levied upon;
(h) The Aircraft is lost, stolen, secreted, abused, illegally used, misused, or
destroyed;
(i) Any part of the Aircraft (which would cost more than the lesser of (i) ten
percent (10%) of the original loan balance or (ii) $250,000.00 to repair or
replace) is damaged, lost, stolen or destroyed, and such part is not replaced or
repaired within 60 days of the date that such part is damaged, lost, stolen or
destroyed;
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(j) One or more final, nonappealable judgments for the payment of money in
excess of $50,000.00 shall have been entered against Debtor, which judgment or
judgments shall have remained undischarged and unstayed for a period of sixty
(60) consecutive days;
(k) Debtor or any guarantor of or surety for the Obligations makes an assignment
for the benefit of creditors, applies to or petitions any tribunal for the
appointment of a custodian, receiver or trustee for itself or for any
substantial part of its property, or commences any proceeding under any
bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, or if any such petition or
application is filed or any such proceeding is commenced against Debtor or any
guarantor or surety, and such petition, application or proceeding is not
dismissed within 30 days, or Debtor or any such guarantor or surety by any act
or omission shall indicate its consent to, approval of or acquiescence in any
such petition, application, proceeding, order for relief or such appointment of
a custodian, receiver or trustee;
(l) Debtor conceals or removes, or permits to be concealed or removed, any part
of its assets, so as to hinder, delay or defraud any of its creditors, or makes
or suffers a transfer of any of its assets which would be fraudulent under any
bankruptcy, insolvency, fraudulent conveyance or similar law or makes any
transfer of its assets to or for the benefit of a creditor at a time when other
creditors similarly situated have not been paid, or suffers or permits, while
insolvent, any creditor to obtain a lien upon any of Debtor's property through
legal proceedings or distraint, or if a tax lien is filed against Debtor.
9. REMEDIES OF SECURED PARTY:
(a) Upon the occurrence of any Event of Default under this Agreement, Secured
Party, at its option, may declare any or all of the Obligations, including but
not limited to the Note, to be immediately due and payable, without demand or
notice to Debtor or any guarantor. The Obligations and liabilities accelerated
thereby shall bear interest from the Event of Default (both before and after any
judgment) until paid in full at the lesser of eighteen percent (18%) per annum
or the maximum rate not prohibited by applicable law.
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(b) Upon the occurrence of any Event of Default, Secured Party shall
additionally have all of the rights and remedies of a secured party under the
Uniform Commercial Code and under any other applicable law. Without limiting the
foregoing and without notice or demand, Secured Party shall have the right at
its option to immediately exercise one or more of the following remedies: (i)
refuse to extend any further credit to Debtor; (ii) terminate this Agreement
immediately without notice; (iii) take immediate and exclusive possession of the
Aircraft, wherever it may be found; (iv) enter any of Debtor's premises, with or
without process of law, wherever the Aircraft may be or Secured Party reasonably
believes it to be, and search for it, and if the Aircraft or any part of it is
found, to take possession of and remove it; (v) sell, lease and otherwise
dispose of the Aircraft or any part of it, at public auction or private sale,
for cash or on credit, as Secured Party may elect at its option and Secured
Party shall have the right to bid and become the purchaser at any such sale, or
keep the Aircraft idle; (vi) notify, in Secured Party's own name, or in Debtor's
name, all obligors of Debtor and demand, collect, receive, receipt for, xxx,
compromise and give acquittance for, any and all amounts due on contracts and
credits, and endorse Debtor's name on any commercial paper or instrument given
as full or partial payment thereon; (vii) direct the Debtor to assemble all
parts and components of the Aircraft and deliver it to Secured Party, at
Debtor's expense, at a place designated by Secured Party which is reasonably
convenient to Secured Party and Debtor; and/or (viii) hold, appropriate, apply
or set-off any and all moneys, credits and indebtedness due from Secured Party,
its affiliates, parents or subsidiaries, to Debtor.
(c) Upon the occurrence of any Event of Default, Debtor shall pay all reasonable
costs incurred by Secured Party in collecting any of the Obligations owed
Secured Party by Debtor and enforcing any Obligations of Debtor to Secured
Party, including but not limited to reasonable attorneys' fees and legal
expenses.
(d) Notwithstanding the availability of any other remedy and in addition
thereto, if Debtor fails to perform any of its Obligations hereunder or under
any of the Debt Documents, Secured Party may perform the same, but shall not be
obligated to do so, for the account of Debtor, and Debtor shall immediately
repay to Secured Party on demand any amounts paid or incurred by Secured Party
in such performance together with interest thereon accrued from the date paid or
incurred by Secured Party until repaid in full by Debtor at the lesser of one
and one half percent (1 1/2%) per month and the maximum interest rate permitted
by applicable law to be charged Debtor by Secured Party.
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(e) Notwithstanding any other provision hereof to the contrary, any notice
required to be given by law or pursuant to this Agreement with respect to
disposition of the Aircraft or any part of it shall be deemed reasonably and
properly given if mailed by first class United States Mail, postage prepaid, by
prepaid express mail service (private or government) or by hand delivery to
Debtor at its last known address, at least ten (10) days before the disposition
of the subject matter of such notification.
(f) Any proceeds realized by Secured Party upon the sale or other disposition of
the Aircraft shall first be applied by the Secured Party to the payment of the
reasonable expenses (including interest) of retaking, holding, preparing for
sale, selling and the like, including reasonable attorneys' fees and legal
expenses and any balance of such proceeds may be applied by the Secured Party
toward the satisfaction of Debtor's Obligations in such order of application as
the Secured Party may in its sole discretion determine. Any surplus remaining
after all of Debtor's Obligations to Secured Party shall have been paid in full
shall be paid to Debtor. Debtor shall be liable for and shall promptly pay on
demand any deficiency resulting from any such disposition of Aircraft.
(g) The foregoing remedies shall not be exclusive or alternative but shall be
cumulative and in addition to all other remedies in favor of Secured Party
existing at law or in equity.
10. WAIVER OF DEFAULT. No waiver by Secured Party of any default shall operate
as a waiver of any other default or of the same default on a future occasion.
11. REPORTS.
(a) Debtor shall promptly notify Secured Party in the event of (i) any change in
Debtor's name, (ii) any relocation of Debtor's chief executive offices, (iii)
any permanent or indefinite relocation of the Aircraft or its home airport, (iv)
the Aircraft being lost, stolen, missing, confiscated, appropriated, seized,
sequestered, destroyed, materially damaged or worn out, (v) any accident
involving the Aircraft or (vi) any lien, claim or encumbrance attaching or being
made against the Aircraft (other than liens in favor of Secured Party). Such
notice shall contain all pertinent details of the event being reported, and
shall be supplemented promptly upon Secured Party's request.
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(b) Debtor agrees to furnish its annual financial statements and such interim
statements as Secured Party may require in form satisfactory to Secured Party.
Any and all financial statements submitted and to be submitted to Secured Party
have and will have been prepared on a basis of generally accepted accounting
principles consistently applied, and are and will be complete and correct and
fairly present Debtor's financial condition as at the date thereof. Secured
Party may at any reasonable time examine Debtor's books and records and make
copies thereof.
12. MISCELLANEOUS:
(a) This Agreement, the Note and/or any of the other Debt Documents may be
assigned, in whole or in part, by Secured Party without notice to Debtor, and
Debtor hereby waives and agrees not to assert against any assignee any defense,
counterclaim, right of set-off or cross-complaint Debtor may have against
Secured Party for any reason whatsoever, agreeing that Secured Party shall be
solely responsible therefor.
(b) All notices to be given in connection with this Agreement and the Debt
Documents shall be in writing, shall be addressed to the parties at their
respective addresses set forth hereinabove (unless and until a different address
may be specified in a written notice to the other party), and shall be deemed
given (i) on the date of receipt if delivered in hand or by facsimile
transmission, (ii) on the next business day after being sent by express mail
(government or private), and (iii) on the fourth business day after being sent
by regular, registered or certified mail. As used herein, "business day" means
any day other than a Saturday, a Sunday, or other day on which commercial banks
in New York, New York are required or authorized to be closed.
(c) Secured Party may correct patent errors herein and fill in all blanks herein
or in the Debt Documents consistent with the agreement of the parties as
confirmed in writing by Debtor prior to Secured Party making such corrections.
(d) Time is of the essence hereof. This Agreement and the Debt Documents shall
be binding, jointly and severally, upon all parties described as the "Debtor"
and their respective heirs, executors, representatives, successors and assigns,
and shall inure to the benefit of Secured Party, its successors and assigns.
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(e) The unenforceability of any provision hereof or of the Debt Documents shall
not affect the validity of any other provision hereof or thereof.
(f) This Agreement and the Debt Documents constitute the entire agreement
between the parties with respect to the subject matter hereof and supersede all
prior understandings (whether written, oral or implied) with respect thereto.
THIS AGREEMENT AND THE DEBT DOCUMENTS SHALL NOT BE CHANGED OR TERMINATED, NOR
SHALL ANY WAIVER BE GIVEN, ORALLY OR BY COURSE OF CONDUCT, BUT ONLY BY A WRITING
SIGNED BY BOTH PARTIES HERETO. Section headings in this Agreement are for
convenience only, and shall not affect the construction or interpretation
hereof.
(g) DEBTOR HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS
AGREEMENT, ANY OF THE DEBT DOCUMENTS, ANY DEALINGS BETWEEN DEBTOR AND SECURED
PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED
TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR
AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING
OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT,
ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS
TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
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(h) Subject to the provisions of that certain Cross-Collateral and Cross-Default
Agreement dated as of APRIL 29, 1999, between Debtor and General Electric
Capital Corporation, this Agreement shall continue in full force and effect
until all of the Obligations have been indefeasibly paid in full to Secured
Party. This Agreement shall automatically be reinstated in the event that
Secured Party is ever required to return or restore the payment of all or any
portion of the Obligations (all as though such payment had never been made).
SECURED PARTY: DEBTOR:
RIDGEBURY FUNDING, L.L.C. UNITED FOODS, INC.
by its Attorney-in-Fact,
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxx Xxxxxx Name: Xxxxxx Xxxxxxx
--------------------------------
Title: Senior Risk Analyst Title: Senior Vice President,
-------------------------------- Administration
By: /s/ Xxxx X. Xxxxxxxxxx, XX
Name: Xxxx X. Xxxxxxxxxx, XX
Title: Senior Vice President,
CFO & Treasurer
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PROMISSORY NOTE
APRIL 30, 1999 (001)
(DATE)
XXX XXXXXXXXX XXXXX_, XXXXX_, XXXXXXX XXXXXX, XX 00000
(ADDRESS OF MAKER)
FOR VALUE RECEIVED, UNITED FOODS, INC. ("MAKER") promises, jointly and severally
if more than one, to pay to the order of RIDGEBURY FUNDING, L.L.C., a Delaware
limited liability company, or any subsequent holder hereof (each, a "PAYEE") at
its office located at 0000 XXXXXXXX XXXXXXXXX XXXXX 000, XXXXXXXXXX, XX 00000 or
at such other place as Payee or the holder hereof may designate, the principal
sum of FIVE-MILLION FOUR-HUNDRED THOUSAND AND 00/100 DOLLARS ($5,400,000.00),
with interest on the unpaid principal balance, from the date hereof through and
including the dates of payment, at a fixed interest rate OF SEVEN AND
SEVENTY-THREE ONE-HUNDREDTHS PERCENT (7.73%) per annum, to be paid in lawful
money of the United States, in ONE-HUNDRED TWENTY (120) consecutive monthly
installments of principal and interest as follows:
PERIODIC INSTALLMENT AMOUNT
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1 - 120 $64,749.04
each ("Periodic Installment") and a final installment which shall be in the
amount of the total outstanding principal and interest. The first Periodic
Installment shall be due and payable on JUNE 1, 1999 and the following Periodic
Installments and the final installment shall be due and payable on the same day
of each succeeding month (each, a "Payment Date"). Such installments have been
calculated on the basis of a 360 day year of twelve 30-day months. Each payment
may, at the option of the Payee, be calculated and applied on an assumption that
such payment would be made on its due date. In the event the Promissory Note is
funded on a day other than the first of a calendar month, Maker shall pay as
interim interest ("Interim Interest") for the period from and including the date
hereof, through and including the last calendar day of the month immediately
preceding the first Periodic Installment (the "Interim Period" ) which shall be
the product of the contract rate set forth above divided by 360 times the
principal sum set forth above.
The acceptance by Payee of any payment which is less than payment in full of all
amounts due and owing at such time shall not constitute a waiver of Payee's
right to receive payment in full at such time or at any prior or subsequent
time.
The Maker hereby expressly authorizes the Payee to insert the date value is
actually given in the blank space on the face hereof and on all related
documents pertaining hereto.
This Note may be secured by a security agreement, chattel mortgage, pledge
agreement or like instrument (each of which is hereinafter called a "SECURITY
AGREEMENT").
Time is of the essence hereof. If any installment or any other sum due under
this Note or any Security Agreement is not received within ten (10) days after
its due date, the Maker agrees to pay, in addition to the amount of each such
installment or other sum, a late payment charge of five percent (5%) of the
amount of said installment or other sum, but not exceeding any lawful maximum.
If (i) Maker fails to make payment of any amount due hereunder within ten (10)
days after the same becomes due and payable and such failure is not cured within
ten (10) days
16
written notice to Maker; or (ii) Maker is in default under, or fails to perform
under any term or condition contained in any Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and
any other sum payable under this Note or any Security Agreement, at the election
of Payee, shall immediately become due and payable, with interest thereon at the
lesser of eighteen percent (18%) per annum or the highest rate not prohibited by
applicable law from the date of such accelerated maturity until paid (both
before and after any judgment).
The Maker may prepay in full or in part, its indebtedness hereunder upon payment
of the entire or partial indebtedness plus an additional sum as a premium equal
to the following percentages of the original principal balance for the indicated
period: (a) three percent (3%) prior to the first annual anniversary date of
said Note; (b) two percent (2%) thereafter and prior to the second annual
anniversary date of said Note; (c) one percent (1%) thereafter and prior to the
third annual anniversary date of said Note; and zero percent (-0-%) thereafter.
It is the intention of the parties hereto to comply with the applicable usury
laws; accordingly, it is agreed that, notwithstanding any provision to the
contrary in this Note or any Security Agreement, in no event shall this Note or
any Security Agreement require the payment or permit the collection of interest
in excess of the maximum amount permitted by applicable law. If any such excess
interest is contracted for, charged or received under this Note or any Security
Agreement, or if all of the principal balance shall be prepaid, so that under
any of such circumstances the amount of interest contracted for, charged or
received under this Note or any Security Agreement on the principal balance
shall exceed the maximum amount of interest permitted by applicable law, then in
such event (a) the provisions of this paragraph shall govern and control, (b)
neither Maker nor any other person or entity now or hereafter liable for the
payment hereof shall be obligated to pay the amount of such interest to the
extent that it is in excess of the maximum amount of interest permitted by
applicable law, (c) any such excess which may have been collected shall be
either applied as a credit against the then unpaid principal balance or refunded
to Maker, at the option of the Payee, and (d) the effective rate of interest
shall be automatically reduced to the maximum lawful contract rate allowed under
applicable law as now or hereafter construed by the courts having jurisdiction
thereof. It is further agreed that without limitation of the foregoing, all
calculations of the rate of interest contracted for, charged or received under
this Note or any Security Agreement which are made for the purpose of
determining whether such rate exceeds the maximum lawful contract rate, shall be
made, to the extent permitted by applicable law, by amortizing, prorating,
allocating and spreading in equal parts during the period of the full stated
term of the indebtedness evidenced hereby, all interest at any time contracted
for, charged or received from Maker or otherwise by Payee in connection with
such indebtedness; provided, however, that if any applicable state law is
amended or the law of the United States of America preempts any applicable state
law, so that it becomes lawful for the Payee to receive a greater interest per
annum rate than is presently allowed, the Maker agrees that, on the effective
date of such amendment or preemption, as the case may be, the lawful maximum
hereunder shall be increased to the maximum interest per annum rate allowed by
the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such
person, other than the Maker, an "OBLIGOR") who may at any time become liable
for the payment hereof jointly and severally consent hereby to any and all
extensions of time, renewals, waivers or modifications of, and all substitutions
or releases of, security or of any party primarily or secondarily liable on this
Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and
maintained against any one or more of them, at the election of Payee without
joinder of any
17
other as a party thereto, and that Payee shall not be required first to
foreclose, proceed against, or exhaust any security hereof in order to enforce
payment of this Note. The Maker and each Obligor hereby waives presentment,
demand for payment, notice of nonpayment, protest, notice of protest, notice of
dishonor, and all other notices in connection herewith, as well as filing of
suit (if permitted by law) and diligence in collecting this Note or enforcing
any of the security hereof, and agrees to pay (if permitted by law) all expenses
incurred in collection, including Payee's actual attorneys' fees. Maker and each
Obligor agrees that fees not in excess of twenty percent (20%) of the amount
then due shall be deemed reasonable.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS
NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR
TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED
TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
This Note and any Security Agreement constitute the entire agreement of the
Maker and Payee with respect to the subject matter hereof and supersedes all
prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its
provisions or conditions, shall be valid unless in writing and signed by an
authorized representative of Maker and Payee. Any such waiver, consent,
modification or change shall be effective only in the specific instance and for
the specific purpose given.
Any provision in this Note or any Security Agreement which is in conflict with
any statute, law or applicable rule shall be deemed omitted, modified or altered
to conform thereto.
UNITED FOODS, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxxxxx, XX
Xxxxxx Xxxxxxx, Senior Vice President Xxxx X. Xxxxxxxxxx, XX,
Administration Senior Vice President,
CFO and Treasurer
00-0000000
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(Federal tax identification number)
