EXHIBIT 10.6
BORROWER COPYRIGHT SECURITY AGREEMENT
BORROWER COPYRIGHT SECURITY AGREEMENT (this "Agreement"), dated as of
December 10, 1996, made by GENCOR INDUSTRIES, INC. (the "Borrower") in favor of
CREDIT LYONNAIS NEW YORK BRANCH, as Agent (in such capacity, the "Agent") for
the Issuing Bank (as defined below) and the several banks and other financial
institutions (the "Lenders") from time to time parties to the Credit Agreement,
dated as of December 10, 1996 (as the same may be amended, supplement or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lenders, Credit Lyonnais New York Branch as the Issuing Bank for
the Letters of Credit (the "Issuing Bank" and, together with the Lenders, the
"Banks"), and the Agent.
R E C I T A L S
WHEREAS, the Lenders have severally agreed to make Loans to the Borrower,
and the Issuing Bank has agreed to issue Letters of Credit in favor of the
Borrower and the Foreign Subsidiaries (as defined in the Credit Agreement) upon
the terms and subject to the conditions set forth in the Credit Agreement;
WHEREAS, it is a condition precedent to the obligation of the Lenders to
make any Loans to the Borrower, and it is a condition precedent to the
obligation of the Issuing Bank to issue any Letters of Credit to the Borrower or
any of its Foreign Subsidiaries, that the Borrower guarantee payment and
performance of all of the Foreign Subsidiary Obligations (as defined in the
Credit Agreement);
WHEREAS, in satisfaction of such condition, the Borrower has agreed to
guarantee payment and performance of all of the Foreign Subsidiary Obligations
and liabilities under the Credit Agreement and the other Loan Documents pursuant
to Section 4.10 of the Credit Agreement; and
WHEREAS, it is a further condition precedent to the obligation of the
Lenders to make any Loans to the Borrower, and it is a further condition
precedent to the obligation of the Issuing Bank to issue any Letters of Credit
to the Borrower or any of its Foreign Subsidiaries, that the Borrower shall have
executed and delivered this Agreement to the Agent, for the ratable benefit of
the Banks, to secure payment and performance of all of the Borrower's
obligations and liabilities under the Credit Agreement and the other Loan
Documents.
A G R E E M E N T
NOW, THEREFORE, to induce (i) the Agent and the Banks to enter into the
Credit Agreement, (ii) the Lenders to make Loans to the Borrower, and (iii) the
Issuing Bank to issue Letters of Credit to the Borrower and its Foreign
Subsidiaries, the Borrower hereby agrees with the Agent, for the ratable benefit
of the Banks, as follows:
1. Defined Terms. (a) Unless otherwise defined in this Agreement,
capitalized terms shall have the meanings given them in the Credit Agreement.
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Copyright Office": the Register of Copyrights in the Library of
Congress.
"Copyrights": all copyrights, copyright registrations and
copyright applications that is owned by the Borrower, or in which the Borrower
acquires any right or interest, at any time prior to the termination of this
Agreement.
"Obligations": the collective reference to the unpaid principal
of, and the accrued and unpaid interest on, the Loans and all other obligations
and liabilities of the Borrower to the Agent and the Banks (including, without
limitation, all of the Borrower's obligations and liabilities under Sections 4
and 5 of the Credit Agreement and the Borrower's liability for all interest that
accrues after the maturity of the Loans and all interest that accrues after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter incurred, that may arise under, out of, or in connection
with, the Credit Agreement, any other Loan Document, any interest rate agreement
entered into by the Borrower with any Bank pursuant to the Credit Agreement or
any other document made, delivered or given in connection with the Credit
Agreement, any other Loan Document or any such interest rate agreement, whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Agent and the Banks that are required to be paid
by the Borrower pursuant to the terms of the Credit Agreement, this Agreement,
any other Loan Document or any interest rate agreement entered into by the
Borrower with any Bank pursuant to the Credit Agreement or any other document
made, delivered or given in connection with the Credit Agreement, any other Loan
Document or any such interest rate agreement).
(b) The words "hereof" "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section and
subsection references are to this Agreement unless otherwise specified.
(c) The meanings given to terms defined in this Agreement shall
be equally applicable to both the singular and plural forms of such terms.
2. Grant of Security Interest. As collateral security for the prompt and
complete payment and performance when and as due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations, the Borrower hereby
grants to the Agent, for the ratable benefit of the Banks, a security interest
in all of the following property now owned or at any time hereafter acquired by
the Borrower (collectively, the "Collateral"):
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(a) all of Copyrights filed with the Copyright Office and, to
the extent applicable, any similar office or agency of any
state, territory or possession of the United States or any
similar office or agency of any other country or used by the
Borrower in the United States, any state, territory or
possession thereof or any other country (including, without
limitation, the copyrights, copyright registrations and
copyright applications listed on Schedule 1 to this
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Agreement);
(b) any renewals and extensions of any Copyright;
(c) all income, royalties, damages and payments now and
hereafter due or payable with respect to the Copyrights
(including, without limitation, payments under all licenses
entered into in connection with the Copyrights and damages
and payments for past or future infringements of the
Copyrights);
(d) all right, title and interest in all physical materials
embodying works with respect the Borrower owns or holds
rights in any Copyrights;
(e) the right to sue for past, present and future infringements
of the Copyrights;
(f) all rights corresponding to the Copyrights throughout the
world;
(g) the goodwill of the Borrower's business connected with and
symbolized by the Copyrights;
(h) any written agreement naming the Borrower as licensor or
licensee, granting any right in or to any Copyright or
copyright registration in the United States or any foreign
country, including, without limitation, any agreement
referred to in Schedule 1 to this Agreement;
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(i) any and all present and future agreements, whether written
or oral, including, without limitation, assignments and
consents, as any such agreements may from time to time be
amended or supplemented, pursuant to which the Borrower now
has or hereafter acquires any direct or beneficial interest
in any Copyright, or is a grantor of rights to any third
party with respect to any copyright, whether as a party to
any such agreement or as an assignee of any rights under any
such agreement, including, without limitation, any agreement
referred to in Schedule 1 to this Agreement; and
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(j) all products and proceeds of the foregoing.
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3. Restrictions on Future Agreements. Until this Agreement has terminated,
the Borrower will not, without the Agent's prior written consent, (a) enter into
any agreement (including, without limitation, any license or sublicense
agreement) that is inconsistent with Borrower's obligations under this
Agreement, the Credit Agreement or any other Loan Document, (b) take any action,
or permit any action to be taken by others subject to its control, including
licensees, or fail to take any action (including, without limitation, the
abandonment of any Copyright) that would adversely affect the validity or
enforceability of the rights transferred to the Agent, for the ratable benefit
of the Banks, under this Agreement, or (c) enter into any other contractual
obligations that may restrict or inhibit the Agent's rights to sell or otherwise
dispose of the Collateral or any part thereof after the occurrence of an Event
of Default.
4. New Copyrights. If, prior to the termination of this Agreement, the
Borrower shall (i)(a) obtain any registration or apply for any registration for
any copyright after the Closing Date in the Copyright Office or in any similar
office or agency of a state, territory or possession of the United States or any
similar office or agency in another country, or (b) obtain any right to or any
interest in any copyright, or (ii) become entitled to the benefit of any
copyright, copyright registration or copyright application, the Agent, for the
ratable benefit of the Banks, shall have a valid first priority security
interest in each such copyright, copyright registration and copyright
application. In the event that the Borrower becomes the owner of, or acquires
any right to or interest in, any copyright, copyright registration and copyright
application after the Closing Date, the Borrower shall promptly (i) notify the
Agent and update Schedule 1 to this Agreement to the extent necessary to
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accurately identify each such copyright, copyright registration and copyright
application, and (ii) provide the Agent with a copy of each such updated
schedule.
5. Representations and Warranties. The Borrower hereby represents,
warrants, covenants and agrees that on the Closing Date and each Borrowing Date:
(a) Except as otherwise provided in this Agreement or any other Loan
Document, it is and will continue to be the owner of all its right, title and
interest in the Copyrights free from any Liens.
(b) It has the full right and power to grant the security interest in
the Collateral to the Agent, for the benefit of the Banks, as and to the extent
by this Agreement.
(c) It has made no previous assignment, transfer or agreements in
conflict with this Agreement or constituting a present or future assignment,
transfer, or encumbrance on any of the Collateral.
(d) Until this Agreement has terminated, it will not execute and,
except as otherwise permitted by the Credit Agreement or any other Loan
Document, there will not be on file in any public office, any financing
statement or other document or instruments or any other Loan Document evidencing
or giving notice of liens affecting the Collateral.
(e) No material infringement or unauthorized use presently is being
made of any of the Copyrights that could adversely affect the fair market value
of the Collateral or the benefits, rights or powers granted to the Agent, for
the ratable benefit of the Banks, pursuant to this Agreement or the validity,
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priority or perfection of the security interests granted in the Collateral
pursuant to this Agreement or the remedies of the Agent, for the ratable benefit
of the Banks, under this Agreement, and the Borrower shall continue to maintain
monitoring and enforcement practices that protect the Collateral.
(f) The Borrower's chief executive office and chief place of business
is set forth on Schedule 2 to this Agreement as amended pursuant to Section 8(c)
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of this Agreement.
(g) Schedule 1 to this Agreement, as amended pursuant to Section 4 of
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this Agreement accurately identifies all of the registered Copyrights that are
owned by or are pending on behalf of the Borrower and all other Copyrights in
which the Borrower has acquired any right or interest.
(h) The Borrower has registered or filed for registration all
Copyrights owned by the Borrower. Each Copyright is valid, subsisting,
unexpired, enforceable and has not been abandoned and has not entered the public
domain. No holding, decision or judgment has been rendered by any Governmental
Authority that would limit, cancel or question the validity of any such
Copyright. No action or proceeding is pending that seeks to limit, cancel or
question the validity of any Copyright.
6. Agent's Right to Maintain Quality. The Borrower agrees that from and
after the occurrence of an Event of Default, the Agent shall have the right to
establish such additional product quality controls as the Agent, in its sole
judgment, may deem necessary to assure maintenance of the quality of products
sold by the Borrower or any of its subsidiaries that bear any Copyright. The
Borrower agrees (i) not to sell or assign its interest in, or to grant any
license or sublicense under, any Copyright without the prior written consent of
the Agent, (ii) to maintain the quality of any and all products in connection
with which the Copyrights are used, consistent with the quality of such products
as of the Closing Date, and (iii) to provide the Agent, upon its request, with a
certificate of an officer of the Borrower certifying the Borrower's compliance
with the foregoing.
7. Royalties. The Borrower hereby agrees that the permitted use by the
Agent, for the ratable benefit of the Banks, of all Copyrights shall be
worldwide without any liability for royalties or other related charges from the
Agent or any of the Banks to the Borrower.
8. Duties of the Borrower. (a) The Borrower shall (i) prosecute diligently
any copyright application that is part of the Copyrights pending as of the
Closing Date or thereafter until this Agreement has terminated, (ii) make
application on copyrights as the Borrower reasonably determines to be
appropriate, (iii) take all reasonable steps to preserve and maintain all rights
in copyright applications, copyrights, and copyright registrations that are part
of the Copyrights; (iv) not abandon any right to file a copyright application
nor any pending copyright application if the value thereof could reasonably be
expected to justify the cost of obtaining such copyright, and (v) not abandon
any Copyright without the consent of the Agent. Any expenses incurred in
connection with the applications referred to in this Section 8 shall be borne by
the Borrower. The Borrower agrees to retain an experienced copyright attorney
for the filing and prosecution of all such applications and other proceedings.
(a) The Borrower shall maintain the security interests created in
favor of the Agent, for the ratable benefit of the Banks, in the Collateral
pursuant to this Agreement as valid and duly perfected first priority security
interests and shall defend such security interests against claims and demands of
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all Persons whomsoever. At any time and from time to time, upon the written
request of the Agent, and at the sole expense of the Borrower, the Borrower
shall promptly and duly execute and deliver such further instruments and
documents and take such further actions as the Agent may request for the
purposes of obtaining or preserving all of the benefits, rights and powers
granted to the Agent and the Banks pursuant to this Agreement. In addition, the
Borrower shall, and shall cause all of its Foreign Subsidiaries to, execute and
deliver such further documents and instruments and take such further actions as
are necessary or desirable, or that are requested by the Agent, to create and
maintain in favor of the Agent, for the ratable benefit of the Banks, valid and
duly perfected first priority security interests in all of the Collateral under
all applicable foreign laws and shall defend such security interests from all
persons whomsoever.
(b) The Borrower shall not permit any of the changes described below
unless (x) at least 20 days prior to such change, the Agent shall have received
written notice of such change and an updated copy of each schedule to this
Agreement required to be updated as result of such change, and (y) all filings
and notices have been made to maintain in favor of the Agent, for the ratable
benefit of the Banks, a valid and duly perfected first priority security
interest in the Collateral, subject to no Liens other than those created
pursuant to the Loan Documents:
b. change the location of its chief executive office and chief place
of business from that set forth on Schedule 2 to this Agreement, as amended; or
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c. change its name, identity or corporate structure to such an extent
that any financing statement filed in favor of the Agent in connection with this
Agreement would become inaccurate or misleading.
9. Remedies. (a) If an Event of Default shall have occurred and be
continuing, the Agent on behalf of the Banks may exercise, in addition to all
other rights and remedies granted to the Agent and the Banks in this Agreement,
any Loan Document and any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the Code (whether or not the Code applies to any part of the Collateral) and any
other applicable laws. Without limiting the generality of the foregoing, the
Agent, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Borrower or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral or any part thereof, or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or office of the Agent or any Bank or elsewhere upon such terms and
conditions as it may reasonably deem advisable and at such prices as it may
reasonably deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Agent or any Bank shall have the right upon
any such public sale or sales and, to the extent permitted by law upon any such
private sale or sales, to purchase the whole or any part of the Collateral so
sold, free of (to the extent permitted by law) any right or equity of redemption
in the Borrower, which right or equity is (to the extent permitted by law)
hereby waived or released. The Agent shall apply the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale, after
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deducting all reasonable costs and expenses incurred therein or incidental to
the care or safekeeping of any of the Collateral or reasonably relating to the
Collateral or the rights of the Agent and the Banks under this Agreement
(including, without limitation, attorney' fees and disbursements) to the payment
in whole or in part of the Obligations, in such order as the Agent may elect,
and only after such application and after the payment by the Agent of any other
amount required by any provision of law (including, without limitation, Section
9-504(1)(c) of the Code) need the Agent account for the surplus, if any, to the
Borrower. If any notice of a proposed sale or other disposition of Collateral
shall be required by law, such notice shall be in writing and deemed reasonable
and proper if given at least 10 days before such sale or other disposition.
(b) The Borrower waives and agrees not to assert any rights or
privileges that it may acquire under Section 9-112 of the Code. The Borrower
shall remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay the Obligations and the
fees and disbursements of any attorneys employed by the Agent or any Bank to
collect such deficiency.
10. Agent's Appointment as Attorney-in-Fact; Agent's Performance of
Borrower's Obligations. (a) The Borrower hereby irrevocably constitutes and
appoints the Agent and any officer or agent of the Agent (each, an "Attorney")
with full power of substitution, as its true and lawful attorney-in-fact, with
full irrevocable power and authority in the place and stead of the Borrower and
in the name of the Borrower or in its own name from time to time in the Agent's
discretion, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments that may be necessary or desirable to accomplish the purposes of
this Agreement and, without limiting the generality of the foregoing, the
Borrower hereby gives each Attorney the power and right, on behalf of the
Borrower, without notice to or assent by the Borrower, to do the following upon
the occurrence and during the continuance of an Event of Default:
(1) to execute and deliver any and all agreements, instruments,
documents, and papers as the Agent may reasonably request to evidence the
security interest of the Agent, for the ratable benefit of the Banks, in any the
Collateral;
(2) to pay or discharge taxes and Liens levied or placed on or
threatened against the any of Collateral;
(3) to execute, in connection with any sale provided for in Section
9 of this Agreement, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral and any part thereof; and
(4) (i) to direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due thereunder
directly to the Agent or as the Agent shall direct; (ii) to ask or demand for,
collect, receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising out of
any part of the Collateral; (iii) to commence and prosecute any suits, actions
or proceedings at law or in equity in any court of competent jurisdiction to
protect, preserve, or realize upon the Collateral or any part thereof and to
enforce any other right in respect of any part of the Collateral; (iv) to defend
any suit, action or proceeding brought against the Borrower with respect to any
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part of the Collateral; (v) to settle, compromise or adjust any such suit,
action or proceeding and, in connection therewith, to give such discharges or
releases as the Agent may deem appropriate; (vi) to assign, license or
sublicense any Collateral throughout the world for such term or terms, on such
conditions, and in such manner, as the Agent shall in its sole discretion
determine; and (vii) to sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any part of the Collateral as fully and
completely as though the Agent were the absolute owner thereof for all purposes,
and to do, at the Agent's option and the Borrower's expense, at any time, or
from time to time, all acts and things that the Agent reasonably deems necessary
to protect, preserve or realize upon the Collateral or any part thereof and the
security interests of the Agent, for the ratable benefit of the Banks, and to
effect the intent of this Agreement, all as fully and effectively as the
Borrower might do.
(b) If the Borrower fails to perform or comply with any of its
agreements contained in this Agreement, any Attorney may, at the option of the
Agent but without any obligation so to do, perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Agent incurred in connection with any
actions taken pursuant to this Section 10, together with interest thereon at a
rate per annum equal to 3 1/2% above the Base Rate then in effect from the date
payment is demanded by the Agent to the date reimbursed by the Borrower, shall
be payable by the Borrower to the Agent on demand.
(d) The Borrower hereby ratifies all actions taken by each Attorney
pursuant to this Section 10. All powers, authorizations and agencies contained
in this Agreement are coupled with an interest and are irrevocable until this
Agreement is terminated and the security interests created hereby are released.
11. Duty of Agent. The Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession, under
Section 9-207 of the Code or otherwise, shall be to deal with it in the same
manner as the Agent deals with similar property for its own account. None of
the Agent, any Bank or any of their respective directors, officers, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any of the Collateral upon the request of the Borrower
or any other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The powers conferred on the Agent and the Banks
under this Agreement are solely to protect the interests of the Agent and the
Banks in the Collateral and shall not impose any duty upon the Agent or any Bank
to exercise any such powers. The Agent and the Banks shall be accountable only
for amounts that they actually receive as a result of the exercise of such
powers, and neither they nor any of their officers, directors, employees or
agents shall be responsible to the Borrower for any act or failure to act under
or with respect to this Agreement, except for their own gross negligence or
willful misconduct (as determined in a final non-appealable judgment by a court
of competent jurisdiction).
12. Execution of Financing Statements. Pursuant to Section 9-402 of the
Code, the Borrower authorizes the Agent to file financing statements with
respect to the Collateral without the signature of the Borrower in such form and
in such filing offices as the Agent reasonably determines appropriate to perfect
the security interests granted to the Agent, for the ratable benefit of the
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Banks, pursuant to this Agreement. A carbon, photographic or other reproduction
of this Agreement shall be sufficient as a financing statement for filing in any
jurisdiction.
13. Authority of Agent. The Borrower acknowledges that the rights and
responsibilities of the Agent under this Agreement with respect to any action
taken by the Agent or the exercise or non-exercise by the Agent of any option,
voting right, request, judgment or other right or remedy provided for in this
Agreement or resulting or arising out of this Agreement shall, as between the
Agent and the Banks, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them but,
as between the Agent and the Borrower, the Agent shall be conclusively presumed
to be acting as agent for the Banks with full and valid authority so to act or
refrain from acting.
14. Notices. All notices, requests and demands to or upon the Agent or the
Borrower under this Agreement shall be given or made in accordance with the
Credit Agreement.
15. Termination and Release. (a) This Agreement and the security interests
created in favor of the Agent, for the ratable benefit of the Banks, pursuant to
this Agreement shall terminate when all of the Obligations have been fully and
indefeasibly paid and when the Banks have no further Commitments under the
Credit Agreement and no Letters of Credit are outstanding or unreimbursed, at
which time the Agent shall execute and deliver to the Borrower, or to such
person or persons as the Borrower shall reasonably designate, all Uniform
Commercial Code termination statements and similar documents prepared by the
Borrower at the Borrower's expense that the Borrower shall reasonably request to
evidence the release of the Liens and the security interests created by this
Agreement with respect to the Collateral.
(b) All Collateral used, sold, transferred or otherwise disposed of
by the Borrower in accordance with the terms of the Credit Agreement (including,
without limitation, pursuant to a waiver or amendment of the terms of the Credit
Agreement), shall be used, sold, transferred or otherwise disposed of free and
clear of the Lien and the security interest created under this Agreement. In
connection with any such sale, transfer or disposition of Collateral, (i) the
Agent shall deliver to the Borrower, or to such person or persons as the
Borrower shall reasonably designate, all Uniform Commercial Code termination
statements and similar documents prepared by the Borrower at the Borrower's
expense that the Borrower shall reasonably request to evidence the release of
the Liens and security interests created under this Agreement with respect to
such Collateral, and (ii) any representation, warranty or covenant contained in
this Agreement relating to such Collateral shall no longer be deemed to be made
with respect to such used, sold, transferred or otherwise disposed Collateral.
16. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. Amendments in Writing, No Waiver; Cumulative Remedies. (a) None of the
terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except in accordance with the provisions of Section 12.1 of
the Credit Agreement and pursuant to a written instrument executed by the
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Borrower and the Agent; provided, however,that the schedules to this Agreement
shall be amended and updated by the Borrower as and to the extent required by
this Agreement.
(b) Neither the Agent nor any Bank shall by any act (except by a
written instrument pursuant to Section 17(a) of this Agreement) or delay be
deemed to have waived any right or remedy under this Agreement or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions of this Agreement. No failure to exercise, nor any delay in
exercising, on the part of the Agent or any Bank, any right, power or privilege
under this Agreement shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege under this Agreement shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Agent or any Bank of any right or remedy under
this Agreement on any one occasion shall not be construed as a bar to any right
or remedy that the Agent or such Bank would otherwise have on any future
occasion.
(c) The rights and remedies provided to the Agent and the Banks in
this Agreement are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
18. Section Headings. The section and subsection headings used in this
Agreement are for convenience of reference only and are not to affect the
construction of this Agreement or be taken into consideration in the
interpretation of this Agreement.
19. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of the Borrower and shall inure to the benefit of the
Borrower, the Agent and the Banks and their successors and assigns; provided,
however, that the Borrower may not assign any of its rights, or delegate any of
its duties or obligations, under this Agreement without the prior written
consent of the Agent.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PROVISIONS THEREOF.
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IN WITNESS WHEREOF, the Borrower has duly executed and delivered this
Agreement as of the day and year first above written.
GENCOR INDUSTRIES, INC.
By: /s/ John Elliott
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Name: John Elliott
Title: Executive Vice President
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