Exhibit 10.23
SECURITY AGREEMENT FOR OWN OBLIGATIONS
DATE: OCTOBER 31, 1996
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The undersigned Edwards Capital Corp.
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(Name)
("Obligor") in
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consideration of financial accommodations given or to be given or continued by
FIRST BANK OF THE AMERICAS ("Bank") to Obligor, hereby agrees with ("Bank") as
follows:
I. GRANT OF SECURITY INTEREST
A. Collateral. As collateral security ("Collateral") for the payment
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when due of all Obligations, as defined below, Obligor hereby pledges,
assigns and transfers to Bank and grants to Bank a continuing lien
upon and security interest in all of Obligor's right, title and
interest now owned and hereafter acquired in:
(1) the following property ("Assets") described on the line(s) marked with
an "X" below (if no line is marked, "Assets" shall mean the property
described in the paragraph titled "ALL"):
X ALL. All Equipment, Accounts, Inventory, Securities, Deposit Accounts
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and Other Property described herein (whether or not the line opposite
any such definition is marked, such definitions being herein
incorporated by reference) and in any separate schedules at any time
delivered by Obligor to Bank;
SCHEDULED ASSETS. All of the assets described below or in any
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schedule hereto and in any separate schedule at any time delivered
from Obligor to Bank:
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X ALL ACCOUNTS. All accounts, instruments, chattel paper, contracts,
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contract rights, accounts receivable, tax refunds, notes, notes
receivable, drafts, acceptances, documents, general intangibles, and
other choses in action (not including wages or salary), including but
not limited to proceeds on inventory and returned goods and proceeds
from the sale of goods and services, and all rights, liens,
securities, guaranties, remedies and privileges related thereto,
including the right of stoppage in transit and rights and property of
any kind forming the subject matter of any of the accounts
("Accounts");
DEPOSIT ACCOUNTS.
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SAVINGS ACCOUNT #: _________________
DEMAND ACCOUNT #: _________________
CERTIFICATE OF DEPOSIT ACCOUNT #: _________________
OTHER #: _________________
deposited with or payable by Bank in the names of Obligor or in which
Obligor has an interest, including all sums now or at any time
hereafter on deposit to said account(s), and any renewals, extensions
or replacements thereof and all other property which may from time to
time be acquired directly or indirectly using the proceeds of such
account(s) ("Deposit Accounts");
X ALL EQUIPMENT. All machinery, equipment, furniture, fixtures
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(whether or not attached to real property), supplies and the other
personal property of Obligor (other than inventory), including any
leasehold interest therein and all replacement parts and annexations
thereto and any maintenance agreements applicable thereto
("Equipment");
X ALL INVENTORY. All inventory of every type or description,
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wherever located, including but not limited to all raw materials,
parts, containers, work in process, finished goods, wares and
merchandise, and goods returned for credit, repossessed, reclaimed or
otherwise acquired by Obligor and all products and proceeds thereof
including but not limited to sales proceeds of any kind ("Inventory");
X ALL SECURITIES. All stocks, bonds, and other securities, and all
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dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange, substitution or addition to any such securities or any of
such additional securities and all certificates, cash and property
arising out of any stock dividend declared or any stock split made, or
cash or other property distributed in connection with any partial or
total liquidation or dissolution or in connection with a reduction in
capital, capital surplus or paid-in surplus of property other than
cash and distributed as a dividend ("Securities");
X ALL OTHER PROPERTY. All property, other than real property,
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Equipment, Accounts, Inventory, Securities and Deposit Accounts,
including, without limitation, leases, rents, chattels, leasehold
improvements, installment purchase and/or sales contracts, advances,
deposits, trademarks, tradenames, licenses, patents, insurance
proceeds and cash value, and all intellectual
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property, choses in action and other general intangibles ("Other
Property"); and
(2) all proceeds (including insurance proceeds) and products of Assets:
and
(3) all liabilities or claims from Obligor to Bank; and
(4) all accounts, property, securities, monies or other property of any
description which may at any time be assigned or delivered or come
into possession of Bank for any purpose for the account of Obligor, or
as to which Obligor may have any right or power, and property in the
possession or custody of or in transit to anyone for the account of
Bank, as well as all proceeds and products thereof, and
(5) all of the books and records and documents of title pertaining to any
of the Assets.
B. Obligations. "Obligations" means all present and future loans,
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advances, debt, liabilities, extensions of credit, covenants, duties,
Indemnities and other obligations to Obligor or owing by Obligor to
Bank, whether direct, indirect (by way of endorsement, guaranty,
pledge or otherwise), liquidated, unliquidated, fixed, contingent, or
howsoever arising (including, without limitation, any participation by
Bank in any obligation owing from Obligor to any third party, whether
now existing or hereafter incurred to or otherwise acquired by Bank,
whether or not evidenced by any document, and whether held for
Obligor's account or for another or others, and all obligations of
Obligor hereunder or under any other agreement with Bank related
hereto, including, without limitation all interest, charges, expenses,
fees, indemnities, attorneys' fees and other amounts chargeable to or
payable by Obligor hereunder or thereunder. The Obligations shall
include new and additional credit facilities for Obligor, whether or
not such facilities are presently contemplated.
C. Other Terms. Terms used and not otherwise defined herein shall have
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the meaning ascribed to such terms by the Uniform Commercial Code.
II. REPRESENTATIONS AND WARRANTIES
Obligor represents and warrants that, except as previously expressly
disclosed in writing from Obligor to Bank:
A. Authority. Obligor is duly organized (and, if a corporation
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incorporated in the jurisdiction of its incorporation) and qualified
to do business in all places where its activities or its ownership of
property, or both, require such qualification and Obligor will supply
opinions to counsel to such effect if requested by Bank. None of the
terms and conditions hereof, or of any other agreement executed by
Obligor and Bank, is in violation of the charter or by-
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laws of Obligor, or any contractual obligation Obligor may have with
Bank or any third party; the execution and delivery of this Agreement
have been duly authorized by appropriate corporate, partnership,
governmental or other action. All approvals of and registrations with
all governmental entities appropriate in connection with the
execution, performance and enforcement hereof have been obtained or
made. Obligor will deliver to Bank a written opinion of counsel as to
the legal property of such action, if requested by Bank.
B. Subsidiaries. The Obligor has no subsidiaries (meaning corporations
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of which Obligor directly or indirectly owns or controls more than 50%
of any class of the capital stock or of the voting rights in any class
thereof).
C. Litigation. No litigation or other proceeding before any court or
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administrative agency is pending or, to the knowledge of Obligor,
threatened against Obligor, the outcome of which could materially
impair Obligor's financial condition or its ability to carry on its
business. Obligor is not the subject of any bankruptcy, insolvency,
reorganization, custodial, receivership or similar proceedings nor
subject to the continuing jurisdiction of any court as the result of
any such proceeding.
D. Financing Statements. No financing statements, other than in favor of
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Bank, relating to any of the Collateral is on file in any place.
E. Assurance of Title. Obligor is and will remain the owner of all of
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the Collateral, or if proceeds of any financial accommodation secured
hereby are being used to purchase the Collateral. Obligor will be the
owner thereof, free and clear of all claims, encumbrances, charges and
liens, except as herein provided.
F. Addresses. The chief executive office, principal place of business of
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Obligor, the books and records relating to the Collateral, and the
Collateral are located at the address(es) set forth in this Agreement.
G. ERISA. Obligor has no funding deficiency, undisclosed liability or
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lien, and no "reportable event" has occurred, under or as defined in
or granted by the Employee Retirement Security Act of 1974, as
amended, nor has any benefit or pension plan subject to such act been
terminated.
H. Tax Liens. There are no unpaid Federal, State, City, County, or other
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tax liens presently filed against Obligor and there are no outstanding
personal property taxes of any kind.
III. COVENANTS
Obligor covenants and agrees that:
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A. Recording and Legal Costs. Obligor will pay all recordation costs and
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taxes incident to filing of financing statements and continuation
statements in respect hereof, and all other expenses, including
attorneys' fees, incident to the Obligations and to perfecting Bank's
security interests in the Collateral.
B. Further Documents and Actions. Obligor will endorse, execute and
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deliver to Bank all instruments or documents, including but not
limited to mortgages, loss payment endorsements for insurance
policies, assignments of insurance policies and proceeds, remittances,
invoices, assignments, notices to debtors, bills of lading, storage
receipts, notices to suppliers, checks, instruments of payment and all
related documentation of any kind, and do all things necessary or
convenient in the sole discretion of Bank to carry into effect the
provisions of this Agreement or to create, preserve or perfect any
interest granted hereby or to enable or assist Bank to exercise and
enforce its rights hereunder or in connection herewith or with the
Obligations and to facilitate collection of Collateral. Obligor
authorizes Bank to file any financing statement or continuation
statement in such form, with or without Obligor's name signed thereon,
and in such places as may be appropriate. Obligor agrees that filed
photocopies of financing statements and continuation statements shall
be sufficient to perfect Bank's security interests hereunder.
C. Taxes. Obligor will pay and discharge, when due, all taxes, levies,
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liens, and other charges on its assets and on the Collateral, and will
pay promptly when due all other taxes, including withholding taxes.
Obligor authorizes Bank to pay for the account of Obligor, any taxes,
levies, or other charges affecting Obligor's assets which Obligor
fails to pay, and any such payment shall constitute an Obligation.
D. Laws. Obligor will comply at all times with all laws, ordinances,
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rules and regulations of any Federal, State, municipal or other public
authorities having jurisdiction of Obligor or any of its assets.
E. Name and Location. Obligor will immediately advise Bank in writing of
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the opening of any new executive office or place of business or the
closing of any such office or place, and of any change in Obligor's
name or the places where the Collateral, or books and records
pertaining to the Collateral, are kept.
F. Records. Obligor will maintain such records with respect to
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Collateral and the conduct and operation of its business as is usual
or as Bank may request and will furnish Bank all information with
respect to the Collateral, account debtors, and the conduct and
operation of its business including but not limited to, balance
sheets, operating statements and other financial information, as Bank
may request.
G. Inspection. Bank or any of its representatives may from time to time
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inspect, check, make copies of or extracts from the books, records and
files of
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Obligor, and inspect any of the Collateral wherever located. Obligor
will cooperate at any time for such purposes.
H. Insurance. Obligor will have and maintain insurance on the Collateral
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at all times and against hazards with companies, in amounts and in
form acceptable to Bank but without any responsibility of the Bank for
the adequacy thereof, with the insurance policies endorsed to make
same payable first to Bank, as its interest may appear, as lender loss
payee or other additional insured (as Bank may select), and will
deliver such policies to Bank. If any insurance losses are paid by
check, draft or other instruments payable to Obligor and Bank jointly,
Bank may endorse the name of Obligor thereon and do such other things
as it may deem desirable in order to reduce the same to cash. All
loss recoveries received by Bank upon any insurance may be applied and
credited by Bank at its discretion to the Obligations.
I. Bank's Duty of Care. Except as herein provided in this Section III
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(I), Bank's sole duty with respect to the Collateral shall be to use
reasonable care in the custody, use, operation and physical
preservation of Collateral in its possession, and Obligor shall, as an
Obligation, reimburse the Bank for all costs and expenses, including
insurance costs, taxes and other charges, incurred in connection with
the custody, use, operation, care or physical preservation of the
Collateral. In the event that Bank takes possession of the
Collateral, Bank may, but shall be under no obligation to, take such
actions as it may deem appropriate to protect Collateral by insurance
or otherwise. Bank shall incur no liability to Obligor for any act of
government, act of God, robbery, vandalism, war, insurrection, riot,
civil unrest, fire, flood or other destruction in whole or part or
negligence or wrongful act of custodians or agents, or its failure to
provide adequate protection or insurance of Collateral. Bank shall
have no obligation to take any action to preserve any rights in any of
the Collateral against prior parties, and Obligor hereby agrees to
take such action. Obligor shall defend the Collateral against all
such claims and demands of all persons, at all times, as are adverse
to Bank. Bank shall have no obligation to realize upon any Collateral
as authorized herein or by law. Obligor hereby waives the defense of
unjustifiable impairment of Collateral.
J. Collateral Account. If Bank so requests, all proceeds of Collateral
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shall be delivered to Bank (or any other bank designated by Bank) in
an account designated as "FIRST BANK OF THE AMERICAS, (name of
Obligor), Collateral Account" or other designation requested by Bank.
Obligor will receive all proceeds of Collateral as agent of and in
trust for Bank and will transmit to Bank, on the day thereof, or at
other mutually agreed upon intervals, all cash, original checks,
drafts, acceptance, notes and other evidence of payment received in
payment of or on account of Accounts. Until delivery, Obligor shall
keep all such proceeds separate and apart from Obligor's own funds,
capable of indemnification as the property of Bank, and shall hold the
same in trust for Bank. All proceeds shall be accompanied by a report
in such form as Bank shall require. Obligor's name appears for
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identification purposes only. Funds in the Collateral Account shall
not be subject to withdrawal by Obligor, but shall at all times be
subject to the control of Bank. All funds held in the Collateral
Account may be applied against Obligations at the sole discretion of
Bank.
K. Equipment. With respect to any security interest hereunder in
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Equipment, as defined in Section I (A) whether or not the line
opposite such definition is marked:
(1) Repair. Obligor will keep and maintain the Equipment in working
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condition, good order and repair.
(2) Personalty. The Equipment shall be and shall remain personal
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property and nothing shall affect the character of the same or
cause the same to become realty, or prevent Bank in its option
from removing same from premises on which Equipment may become
attached.
(3) Paydown. Without the prior written consent of Bank, Obligor will
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not sell or otherwise dispose of any of the Equipment without
paying to Bank, in reduction of the Obligations, an amount equal
to the greatest of book value, appraised value or sales price of
the Equipment sold or disposed of.
L. Accounts. With respect to any security interest hereunder in
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Accounts, as defined in Section 1 (A) whether or not the line opposite
such definition is marked:
(1) Payment. Each Account will be paid in full on or before its due
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date, and if not so paid and if requested by Bank, Obligor shall
pay to Bank on or to the Collateral Account an amount equal to
the past-due amount.
(2) Credits. If any allowance or credit on any Account is given by
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Obligor, then Obligor will, if requested by Bank, pay the same
immediately to Bank or to the Collateral Account.
(3) Returns. If any property evidenced by an Account should be
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returned by Obligor, the Obligor will hold the same in trust as
security for and subject to the orders of Bank (including to sell
or otherwise dispose thereof) and Obligor will, if requested by
Bank, pay the amount represented to be owing on the rebated
Account immediately to Bank or to the Collateral Account.
(4) Bona Fide. Each and every Account will be bona fide, be for a
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certain undisputed claim or demand for the amount Obligor
represented to be owing thereon, represent a sale and delivery of
personal property sold or leased or for services rendered, and
not be subject to any setoff,
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counterclaim, or contingent liability upon the fulfillment of any
contract or condition whatsoever.
(5) Books. Obligor will keep accurate records of Accounts and
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cooperate with any inspection thereof requested by Bank, and
shall deliver such books and all papers relating to the Accounts
to Bank on request. If requested, Obligor will make proper
entries in its books disclosing the interest of Bank in the
Accounts.
(6) Mail. If Bank requests, Obligor will open all mail only in the
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presence of Bank, who may take therefrom any remittance on
Accounts. Obligor grants Bank the power of attorney to have mail
delivered to Bank, and not to Obligor, and to open all mail and
take therefrom any remittance on any Accounts. If Bank requests
for such purpose, Obligor will provide Bank with access to any
postal boxes or area in which mail is received.
(7) Collections. Bank authorizes and permits Obligor to collect
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Accounts from debtors. This privilege may be terminated by Bank
at any time without notice of Obligor before or after default
hereunder, and Bank may notify any debtor or debtors of the
assignment of Accounts and collect the same. Obligor will at any
time requested by Bank, notify any or all Account debtors to make
payment of their Accounts directly to Bank or for deposit to the
Collateral Account.
M. Inventory. With respect to any security interest hereunder in
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Inventory, as defined in Section I (A) whether or not the line
opposite such definition is marked:
(1) Audit. Bank business, but shall or its representative may from
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time to time verify Inventory, through actual count or otherwise,
and Obligor.
(2) Sale. So long as no Event of Default has occurred hereunder,
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Inventory may be sold in the ordinary course of business, but
shall not otherwise be taken or removed from Obligor's premises.
N. Securities. With respect to any security interest hereunder in
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Securities, as defined in Section I (A) whether or not the line
opposite such definition is marked:
(1) Transfers. All certificates or instruments representing or
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evidencing such securities (or, if any such securities are
uncertificated, transfer and pledge instructions and
notifications) shall be delivered to Bank and shall be in
suitable form and quantity and otherwise in form and substance
satisfactory to Bank; Bank is hereby authorized, at its option
and without any obligation to do so, to deliver to the issuer of
any such securities or any other party and to pledge and/or
transfer instructions
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and notifications with respect thereto, and to transfer to or
register in the name of itself or its nominee(s) all or any part
of such securities, and to do so before or after any Event of
Default hereunder or the maturity of the Obligations secured
hereby, with or without notice to Obligor; Bank shall have the
right at any time to exchange certificates or instruments
representing or evidencing such securities for certificates or
instruments of smaller or larger denominations.
(2) Dividends. In the event that a stock or cash dividend is
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declared, or any stock split-up made, with respect to any
security pledged hereunder, or cash or other property is
distributed in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital
surplus or paid-in surplus, all the certificates (or, if
uncertificated, transfer and pledge instructions and
notifications) for the shares representing such stock dividend or
stock split-up and all of such cash and other property, will be
delivered duly endorsed to Bank as Collateral hereunder.
O. Additional Collateral. Obligor will upon request of Bank deliver to
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Bank and will at all times maintain with Bank Collateral in an amount
and of a character satisfactory to Bank. For such purposes the value
of any Collateral shall be determined by Bank in its sole discretion.
P. Further Covenants. Without the prior written consent of Bank, Obligor
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will not: (1) pledge or grant any Collateral to anyone except Bank,
nor permit any financing statement (except Bank's financing statement)
to be on file in any public office with respect thereto; (2) permit or
suffer any lien, levy or other encumbrance to attach to any of the
Collateral; (3) permit a material change in any Account or account
arising out of a contract right, or a material change in the terms of
any such contract; (4) make any agreement, compromise, settlement,
bulk sale, lease or transfer of assets other than in the normal course
of business; (5) assume, guarantee, endorse or otherwise become liable
in connection with the obligations of any person, firm or corporation,
except by endorsement of instruments for deposit or collection or
similar transactions in the ordinary course of business; or (6) enter
into any merger or consolidation, or sell or lease substantially all
of its assets.
IV. EVENTS OF DEFAULT
The following shall constitute Events of Default hereunder:
A. Nonperformance. Default in the payment or performance when due of, or
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breach of warranty in, this Agreement, any Obligation, or any note or
other agreement evidencing Obligations or any other agreement of
Obligor with Bank or with any other lending institution, whether or
not such agreement exists presently;
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B. Termination of Interest. Lapse or termination of Obligor's interest
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in any of the Collateral other than through sales of Inventory or
other use of Collateral in the ordinary course of business;
C. Extraordinary Events. The sale, dissolution, merger, consolidation,
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liquidation, death, incompetence, insolvency or reorganization of
Obligor (or any endorser, guarantor or co-maker of any Collateral or
Obligations);
D. Legal Action, etc. Any proceeding is commenced for the enforcement of
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any judgment against Obligor or its property or any judgment is
obtained against Obligor which, in the sole opinion of Bank, might
have material adverse effect on the financial condition or continued
operations of Obligor or which remains unsatisfied for thirty days; or
any petition is filed by or against Obligor (or any endorser,
guarantor or co-maker of any Collateral or Obligations) (1) under any
chapter of the Bankruptcy Code as amended, or any other bankruptcy,
insolvency or similar law, or (2) for the appointment of a receiver or
custodian of any of Obligor's property; or any assignment is made by
Obligor for the benefit of creditors; or any attachment or tax lien is
filed against any property of Obligor (or any endorser, guarantor or
co-maker of any Collateral or Obligations), such lien or attachment
not being promptly discharged, stayed or indemnified against to Bank's
satisfaction;
E. Additional Collateral. Failure of Obligor to furnish additional
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Collateral as Bank may request; and
F. Financial Condition: Insecurity. Any adverse charge, determined by
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Bank in good faith, in financial condition or insolvency, suspension
of business, or business failure of Obligor (or any endorser,
guarantor or co-maker of any Collateral or Obligations); or Bank in
its sole discretion deems itself insecure, whether or not by decline
in value of Collateral or the anticipation thereof and whether or not
by reason of circumstances existing prior to the creation of any
Obligation or any other time.
V. CERTAIN RIGHTS; EFFECT OF EVENT OF DEFAULT
A. Obligations Due; Commitments Terminated - If an Event of Default shall
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occur, then, notwithstanding any other agreement now or hereafter
existing, all Obligations shall become immediately due and payable
without notice, presentation, demand for payment or protest, which are
hereby expressly waived, and all commitments, if any, of Bank to
extend additional financial accommodations shall terminate
immediately.
B. Costs Reimbursed. If an Event of Default hereunder shall occur,
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Obligor shall pay to Bank attorneys' and paralegal fees equal to 15%
of the unpaid balance of the Obligations at the time of default (but
not exceeding the amount permitted by applicable law), plus Court
costs and other expenses which may be incurred by Bank in the
administration hereof during the continuance of any
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Event of Default or the enforcement or attempted enforcement of its
rights hereunder, whether against any third party or Obligor (or any
endorser, guarantor or co-maker of any Collateral or Obligations).
Obligor shall reimburse Bank for all costs of collection including
salaries, out-of-pocket, travel and living expenses and the hiring of
agents, consultants and accountants. All sums of money thus expended,
and all other monies expended by Bank to protect its interests in the
Collateral (including insurance taxes or repairs) shall be Obligations
payable on demand.
C. Action Regarding Collateral. Bank at any time and in its discretion,
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may remove Collateral to such place as Bank may deem advisable, or
require Obligor to assemble and make all Collateral available to such
place as Bank may direct, and upon any Event of Default, may sell, re-
sell, assign, transfer, lease and deliver or otherwise deal or decline
to deal with all or any part of the Collateral, in each case without
advertisement, in one or more sales, or such price or prices, and upon
such commercially reasonable terms (such as requiring any purchaser of
any stock to represent that such purchase is for investment purposes
only) either for cash or credit or future delivery as Bank may elect.
Obligor authorizes Bank to grant extensions or modifications of terms
to or adjust claims of, or make compromise with debtors, guarantors or
any other parties with respect to Accounts or any securities,
guaranties or insurance or other obligations compromising Collateral
without notice to or consent of Obligor, without affecting the
Obligations and without liability of the Bank to account. Obligor
waives notices of non-payment, protest and all other notices to which
Obligor might otherwise be entitled. The proceeds of any such
liquidation less all costs and expenses incurred in connection
therewith, and, at the option of the Bank, less any prior lien claims,
shall be applied against the Obligations in the order that Bank in its
sole discretion shall decide. Obligor shall remain liable to Bank for
any deficiency.
D. Bank Appointment Attorney-In-Fact. Obligor hereby appoints Bank the
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attorney-in-fact of Obligor with full power in the name and on behalf
of Obligor to take any action and to execute and deliver any agreement
or instrument (including financing statements) which the Bank may deem
necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest. All acts of
said attorney are hereby ratified and approved and said attorney and
its designees shall not be liable, and Obligor shall hold same
harmless from liability for, any acts or failure to act, or for any
error of judgment or mistake of law or fact.
E. Set-Off. Obligor authorizes Bank to charge and apply against any or
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all of the Obligations at any time or times, without notice and at its
option, the balance of any demand or depository accounts which
Obligor, or its affiliates, may have with Bank, all without impairing
Obligor's liability for any deficiency.
VI. GENERAL PROVISIONS
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A. Continuity and Termination. This Agreement shall become effective
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immediately, shall be continuing and remain in effect notwithstanding
any intermittent absence of Obligations. This Agreement may be
terminated by Obligor upon actual delivery of written notice to Bank
and payment in full of all then existing Obligations; provided,
however, that such notice and payment shall in no way affect, and this
Agreement shall remain fully operative with respect to, any
Obligations, or any Obligations which may thereafter arise in
connection with any commitments of the Bank to extend financial
accommodations to Obligor entered into between Obligor and Bank prior
to receipt of such notice or payment, whichever is later. The
indemnities of Obligor to Bank hereunder shall survive any termination
hereof.
B. Other Documents. All Obligations and all notes, guaranties, or other
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documents evidencing Obligations are separate agreements and may be
negotiated, executed, modified, cancelled or released by Bank without
releasing Obligor or Collateral (or any endorser, guarantor or co-
maker of any Collateral or Obligations). Obligor consents to any
extension of time of payment of any Obligations and all actions or
inactions with respect thereto or to any Collateral, guaranties or
other security therefor. If there is more than one Obligor, endorser,
guarantor or co-maker of this Agreement or of the notes or other
agreement secured hereby, the obligation of all shall be primary,
joint and several.
C. Remedies Cumulative. All rights, remedies and powers of Bank
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hereunder and in connection herewith are irrevocable and cumulative,
and not alternative or exclusive, and shall be in addition to all
other rights, remedies and powers of Bank whether under law, equity or
agreement.
D. Consideration: No Commitment. Obligor has entered into this
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Agreement to induce Bank to extend or continue financial accommodation
to Obligor, which shall be deemed to have been expended or continued
in reliance on this Agreement. Nothing contained herein shall be
construed as obligating Bank to extend or continue any financial
accommodation to Obligor, and Obligor is not relying upon Bank to
extend or continue any financial accommodation, which shall, unless
otherwise expressly agreed, remain within the discretion of Bank.
E. No Waiver. No waiver or amendment of or forbearance to enforce any of
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Bank's rights hereunder shall be effective unless expressly granted in
writing and shall be limited to the extent expressed therein. No
delay on the part of Bank in the exercise of any right or remedy shall
operate as a waiver thereof, and no single or partial exercise by Bank
of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. Bank may from
time to time, whether before or after any of the Obligations shall
become due and payable, without notice to or demand of, and without
any reservation of rights against, all of which the Obligor (and any
endorser, guarantor or co-maker) hereby acknowledged to be reserved,
at the expense of Obligor, take all or any of the following actions
(a) retain or obtain a security
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interest in any property, in addition to the Collateral, to secure any
of the Obligations; (b) retain or obtain the primary or secondary
liability of any party or parties, in addition to the Obligor, with
respect to any of the Obligations; (c) renew, extend, accelerate,
modify, compromise, settle, release or surrender any Obligation or any
obligations of any other party primarily or secondarily liable for all
or any part of the Obligations with respect to any or all of the
Obligations; (d) renew, extend, accelerate, modify, compromise,
settle, release or surrender all or any part of any property, in
addition to the Collateral, securing any of the Obligations or any
obligations of any nature of any party with respect to any such
property; (e) resort to the Collateral for payment of any of the
Obligations whether or not it shall have resorted to any other
property securing the Obligations or shall have proceeded or exhausted
its remedies against any other party primarily or secondarily liable
on any of the Obligations; or (f) release or substitute any of the
undersigned or any other party primarily or secondarily liable for all
or any part of the Obligations.
F. Governing Law; Severability. This Agreement shall be governed by and
---------------------------
construed in accordance with the laws of the State of New York. Each
provision of this Agreement shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of
this Agreement shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or
the remaining provisions of this Agreement.
G. Litigation. Notwithstanding any termination hereof, Obligor hereby
----------
irrevocably agrees that any action or proceeding in connection
herewith may be brought in any state or federal court in the State of
New York and irrevocably submits to the non-exclusive jurisdiction of
such courts in such actions Obligor waives trial by jury. Obligor
consents to service of process by mail in any such action and to the
removal to any such courts by Bank of any action brought in any court
other than one selected by Bank, in its sole discretion, as the venue
of such action. Obligor waives and agrees not to raise any present or
future counterclaim or any claim it may have that any such court is
not a convenient forum.
H. Construction. The captions in this Agreement are for convenience only
------------
and shall not affect the construction or interpretation hereof.
I. Assignment. This Agreement shall enure to and be binding upon the
----------
heirs, personal representatives, successors, and assigns of Obligor
and Bank and the terms "Obligor" and "Bank" shall include and mean,
respectively, the successors and assigns of Obligor and Bank. Obligor
shall have no right to assign this Agreement without the prior written
consent of Bank. Bank may assign its rights hereunder in full or in
part.
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J. Reasonable Notice. Five (5) business days notice shall be
-----------------
conclusively deemed reasonable notice. Notice shall be deemed given
when delivery deposited in the U.S. mail with first class postage.
VII. ADDRESSES
Address of Chief 205 East 42nd Street
---------------------------
Executive Office New York (212) 682-3300
---------------------------- ---------------------
(Telephone)
Address of Location of
----------------------
Books and Records
---------------------------- ---------------------
(Telephone)
Other Address(es) of
----------------------
Location of Collateral
---------------------------- ---------------------
(Telephone)
IN WITNESS WHEREOF, Obligor has duly executed this Agreement as of the day
and year first above written.
WITNESS/ATTEST: IF OBLIGOR IS A BUSINESS, SIGN BELOW:
Edwards Capital Corp.
------------------------------------------
(Name of Obligor)
By: /s/ M. J. Kowalsky
----------------------------------------
(Authorized Signature)
M. J. Kowalsky, President
------------------------------------------
(Print Name and Title)
WITNESS: /s/ Marie Russo
By: /s/ Daniel Baker
-----------------------------------------
(Authorized Signature)
Daniel Baker, Treasurer
------------------------------------------
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WITNESS: /s/ Alvin Murstein IF OBLIGOR IS AN INDIVIDUAL, SIGN BELOW:
------------------------------------
(Signature of Obligor)
------------------------------------
(Print Name)
------------------------------------
(Street Address)
------------------------------------
(City/State) (Telephone)
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