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EXHIBIT (10)N
General Loan and Collateral Agreement
of FIRST OF AMERICA SECURITIES, INC.
In order to induce Chemical Bank __________________ (hereinafter called
the "Bank") from time to time in its discretion to extend or continue credit to
or make other financial accommodations to or for the benefit of the undersigned
or to or for the benefit of third parties on the guaranty or endorsement or
other assurance of the undersigned, the undersigned grants to the Bank by
pledge, assignment and/or hypothecation and agrees that in addition to any
rights which the Bank would otherwise have, the Bank shall have a lien for all
the liabilities of the undersigned upon, all property and the proceeds thereof
(including any property of others that the undersigned has the power to pledge,
assign, hypothecate or otherwise dispose of), real or personal, tangible or
intangible, of any kind, or any interest in any thereof, now or hereafter
pledged, mortgaged, transferred or assigned to the Bank, Chemical Securities,
Inc., or any other affiliate of the Bank or its agents or otherwise in the
possession or control of the Bank, Chemical Securities, Inc., or any other
affiliate of the Bank now or hereafter, for safekeeping, custody, pledge,
transmission and collection or for any other or different purpose for the
account or benefit of the undersigned and also upon any balance of any deposit
account or of any credit of the undersigned with the Bank, Chemical Securities,
Inc., or any other affiliate of the Bank whether now existing or hereafter
established, hereby authorizing the Bank at any time or times with or without
prior notice to apply such balances or credits or any part thereof to such of
the liabilities of the undersigned, although contingent or unmatured, in such
amounts as it may select and whether or not the collateral or the
responsibility of other persons primarily, secondarily or otherwise liable may
be deemed adequate. All such property and balances and credits are hereinafter
collectively referred to as the "collateral". For the purposes of this
paragraph, all remittances and property shall be deemed to be in the possession
of the Bank as soon as the same may be put in transit to it by mail or carrier.
For the purposes of this instrument, the term "liabilities of the
undersigned" shall include all present and future liabilities of the
undersigned to the Bank of any and all kinds, and claims of every nature and
description of the Bank against the undersigned, whether created directly or
acquired by the Bank by assignment or otherwise, whether now existing or
hereafter arising, absolute or contingent, joint or several, due or to become
due, secured or unsecured. If the liabilities of the undersigned arise out of
the undersigned's guaranty of another person's or entity's (a "Borrower") debt
to the Bank, such Borrower's obligations shall be part of the liabilities of
the undersigned.
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The undersigned shall remain responsible for ascertaining any maturities,
calls, conversions, exchanges, tenders or similar matters relating to the
collateral, and the Bank shall have no duty to so ascertain or to inform the
undersigned with respect thereto (whether or not the Bank has, or is deemed to
have, knowledge). Should the undersigned ascertain any such event and request
that the Bank take action with respect thereto, the Bank shall not be required
to do so unless such request be in writing and the Bank determines that such
action will not adversely affect the value as collateral of the collateral.
The undersigned authorizes the Bank to deliver to others a copy of this
General Loan and Collateral Agreement as written notification of the
undersigned's transfer of a security interest in the Collateral to the Bank.
The undersigned will execute immediately upon the Bank's request such documents
and endorsements as are necessary or desirable, in the Bank's sole discretion,
to perfect and continue perfected the liens and security interests granted
herein or to enable the Bank to negotiate, transfer and deliver the collateral.
The undersigned hereby appoints the Bank as the undersigned's attorney-in-fact,
at the Bank's option and at the undersigned's expense, to do all acts and
things, in the undersigned's name, place and stead, which the Bank deems
necessary or desirable to perfect and continue perfected the security interests
created herein and to protect the collateral . Upon receipt of any securities,
dividends, or the like, that are distributed to the undersigned (as a result of
a cash or stock dividend, stock split or otherwise) in respect of securities
being held by the Bank, Chemical Securities, Inc., or any other affiliate of
the Bank as collateral, the undersigned shall immediately deliver such
securities, duly assigned, or such dividend payments, to the Bank or such
affiliate.
The undersigned agrees that if at any time or times the value, represented
by the price readily available to the Bank at an immediate sale, of the
collateral then held by the Bank, should decline or should not be, in the sole
judgment of the Bank, satisfactory or adequate, or shall be, in the sole
judgment of the Bank, unsatisfactory or inadequate with respect to any and all
unpaid liabilities of the undersigned, then and in each such event (hereinafter
referred to as an "event of deficiency"), as to the existence or occurrence of
which the opinion of the Bank or any of its officers shall, for the purposes of
this instrument, be conclusive, the undersigned will, with or without notice or
demand, immediately pay on account such amount, or furnish such further
security, as may, in either case, be satisfactory to the Bank. During the
existence of any event of deficiency, the Bank may at any time or from time to
time, with or without notice, declare any or all of the liabilities of the
undersigned, although otherwise unmatured or contingent, immediately absolute
and due and payable, by making an endorsement or endorsements to such effect
upon the evidences of such liabilities or upon this instrument.
In the event of (a) any default for any reason under any of the
liabilities of the undersigned or default in.the prompt payment (at maturity,
by acceleration or otherwise) of any of the liabilities of the undersigned, or
(b) the insolvency, suspension of usual business, general assignment or failure
of the undersigned or any Borrower, or (c) the appointment of a receiver,
conservator, rehabilitator or similar officer for the undersigned or any
Borrower or for any of the property of the undersigned or any Borrower, or (d)
the issuance of any warrant of attachment against any of the property of the
undersigned or any Borrower, or the issuance of any levy by a taxing authority
or (e) the filing of a petition in bankruptcy by or against the undersigned or
any Borrower or the commencement of any proceedings by or against the
undersigned or any Borrower under any bankruptcy or debtors law for the relief
or reorganization of the undersigned or any Borrower or for the composition,
extension, rearrangement or readjustment of any obligations of the undersigned
or any Borrower, or (f) the commencement of any proceedings supplementary to
execution relating to any judgment against the undersigned or any Borrower, or
(g) death or dissolution, merger, consolidation or reorganization, then and in
any such event (hereinafter referred to as an "event of default") all
liabilities of the undersigned, although otherwise unmatured or contingent,
shall forthwith become absolute and due and Payable without any notice or
demand whatsoever.
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Upon and after the happening of any event of deficiency or event of
default, the Bank shall have, in addition to all other rights and remedies, the
remedies of a secured party under the New York Uniform Commercial Code.
The undersigned hereby authorizes the Bank at any time during the
existence of any event of deficiency, or upon or at any time after the
occurrence of any event of default, whether occasioned by acceleration of
maturity of any of the liabilities of the undersigned as hereinbefore provided
or otherwise, to sell or grant options to purchase or otherwise realize upon
the whole or from time to time any pan of the collateral with or without notice
or demand of payment of any of the liabilities of the undersigned. Any such
sales may be made at any broker's board or at public or private sale, at the
option of the Bank, with or without advertisement or notice of intention to
sell or of the time or place of sale and may be for cash or credit and for
present or future delivery. At any sale the Bank may become the purchaser of
any of the property sold, free from any right of redemption.
The undersigned agrees to pay to the Bank, as soon as incurred, all costs
and expenses incidental to the care, sale, or collection of or realization upon
any of the collateral or in any way relating to the rights of the Bank
hereunder, including counsel fees. The Bank may apply any or all proceeds of
the collateral to the payment or reduction of such of the liabilities of the
undersigned and in such amounts as it may select. although contingent and
although unmatured; and may set off, without notice, against all or any part of
the liabilities of the undersigned, whether or not then due or matured, all
amounts owed by the Bank in any capacity to the undersigned in any capacity,
whether or not then due or matured, and the Bank shall be deemed to have
exercised such right against such funds immediately upon an event of default or
event of deficiency and without further action even though such set off is
subsequently entered on the Bank's books and records; and in case of any
deficiency, the undersigned wilt remain liable therefor.
The undersigned expressly waives and releases any right under any theory
whatsoever to require the Bank to collect any portion of the liabilities of the
undersigned from any other person or from the proceeds of any other property
held by the Bank. The Bank is hereby authorized, with or without notice, before
or after maturity of any of the liabilities of the undersigned, to transfer to
or register in the name of its nominee or nominees all or any part of the
collateral and to exercise any or all rights of collection, enforcement,
conversion or exchange and other similar rights, privileges and options
pertaining to the collateral, but the Bank shall have no duty to exercise any
such rights, privileges or options or to sell or otherwise realize upon any of
the collateral as herein authorized or to preserve the same and shall not be
responsible for any failure to do so or delay in doing so.
The undersigned expressly waives all notices of any character whatsoever
and waives, as against the Bank, any right of subrogation, contribution,
indemnification and all other rights available to the undersigned at law or in
equity.
The Bank may transfer this instrument and/or any or all instruments
evidencing any or all of the liabilities of the undersigned and may deliver the
collateral or any part thereof to the transferee or transferees, who shall
thereupon become vested with all the powers and rights with respect thereto
given to the Bank hereby or by the instrument or instruments so transferred,
and the Bank shall thereafter be forever relieved and fully discharged from any
liability or responsibility with respect thereto; but the Bank shall retain all
rights and powers hereby given to it with respect to any and all liabilities of
the undersigned and collateral not so transferred. The provisions of the fifth
and sixth paragraphs hereof shall be and remain effective although any of the
conditions stated therein shall, with or without the knowledge of the Bank,
exist at or immediately after the time of its acceptance of any liability of
the undersigned or of further security or of any payment on account.
Presentment and demand for payment with respect to any of the liabilities of
the undersigned may be made at the office of the Bank. Any notice to or demand
on the undersigned elected to be given or made by the Bank or any transferee
shall be deemed effective, if not first otherwise made
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or given, when forwarded by mail, telecopier, cable or radio or telephoned to
the last address of the undersigned appearing on the Bank's books. No
act or delay on the part of the Bank or any transferee in exercising any rights
hereunder or failure to exercise the same shall operate as a waiver of any
rights; no notice to or demand on the undersigned shall be deemed to be a
waiver of the obligation of the undersigned or of the right of the Bank or of
any transferee to take further action without notice or demand as provided
herein; nor in any event shall any waiver be effective unless in writing and
then the same shall be applicable only in the specific instance for which
given. No course of dealing between the undersigned and the Bank shall be
effective to modify or discharge in whole or in part this agreement.
This agreement shall cover all future as well as all existing transactions
and shall remain effective irrespective of any interruptions in the business
relations of the undersigned with the Bank. The term "undersigned" as used
herein shall, if this instrument is signed by more than one party, mean the
"undersigned and each of them" and each undertaking herein contained shall be
their joint and several undertaking, provided, however, that in the phrases "of
the undersigned", "by the undersigned", "against the undersigned", "for the
undersigned", "to the undersigned", and "on the undersigned'', the term
"undersigned" shall mean the "undersigned or any of them", and the Bank may
release or exchange any of the collateral belonging to any of the parties
hereto and may renew or extend any of the liabilities of any of them and may
make additional advances or extensions of credit to any of them and may release
or fail to set off any deposit account or credit of any of them and may grant
other indulgences to any of them, all from time to time, before or after
maturity of any of the liabilities of the undersigned, with or without further
notice to or assent from any of the other parties hereto. If any party hereto
shall be a partnership, the agreements herein contained shall remain in force
and applicable notwithstanding any changes in the individuals composing the
partnership, and the term "undersigned" shall include any altered or successive
partnerships, but the predecessor partnerships and their partners shall not
thereby be released from any liability.
The Bank and the undersigned, in any litigation arising out of or in
connection with the collateral, the liabilities of the undersigned or this
agreement, IRREVOCABLY WAIVE TRIAL BY JURY.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Executed and delivered this 14 th day of AUGUST, 1995
__________________________
(Individual Borrower)
__________________________
(Individual Borrower)
FIRST OF AMERICA SECURITIES, INC.
(Name of Corporate or Partnership Borrower)
/S/ Susan L. Currier, President & CEO
BY: Name and Title
_________________________________________
BY: Name and Title
ATTEST:___________________________________________
(for corporate Borrower only - to be signed
by Secretary or Assistant to Secretary)
(AFFIX CORPORATE SEAL HERE)