Exhibit 10(j)
SECURITY AGREEMENT
In consideration of advances, loans and extensions of credit now
outstanding or hereafter made to, or for the account or benefit of, Firecom,
Inc.(the "Company") by Fleet Bank, N.A.(the "Bank"), whether alone or in
conjunction with another or others and/or the granting to, or for the account or
benefit of the Company, extensions, forbearances, modifications or renewals
thereof, as the Bank, in its sole discretion may deem advisable, and/or of any
advances, loans or extensions of credit now outstanding or hereafter made by the
Bank to another, the payment of which is guaranteed by the Company to the Bank,
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company does hereby agree with the Bank as follows:
SECTION 1. DEFINITIONS
-----------
1.1 Defined Terms. As used in this Agreement, the following terms shall
-------------
have the following meanings, unless the context otherwise requires:
"Account" or "Accounts" shall mean and include any and all
present and future accounts, accounts receivable, contract rights,
general intangibles, documents, instruments and chattel paper,
including, without limitation, any and all purchase orders, instruments
and other documents evidencing obligations for and representing payment
for goods sold or leased and/or services rendered by the Company
whether or not earned by performance, all returned, reclaimed or
repossessed goods with respect thereto, all rights and remedies of the
Company under or in connection with credit insurance, guaranties,
letters of credit and other security for any of the foregoing, the
proceeds of and the goods represented by any of the foregoing and all
books and records pertaining to the foregoing.
"Account Debtors" means customers of the Company and all other
persons who are obligated or indebted to the Company in any manner,
whether directly or indirectly, primarily or secondarily, contingently
or otherwise, with respect to Accounts or General Intangibles.
"Agreement" shall mean this Security Agreement, as amended or
modified, and any and all other documents and instruments now or
hereafter executed and delivered in conjunction herewith.
"Collateral" shall mean all Equipment, Accounts, Inventory,
General Intangibles, goods, documents and all books, records, invoices
and any other document, instrument or writing relative thereto, whether
now owned or in existence or hereafter acquired or existing and
wherever located and in the proceeds (including, without limitation,
insurance proceeds) and products thereof, together with any and all
other property of the Company upon which the Bank may now have or may
hereafter acquire a security interest under the UCC.
"Credit Agreement" shall mean the Loan Agreement dated as of
the date hereof between the Company and the Bank.
"Equipment" shall mean all removable leasehold improvements,
machinery, equipment, furniture, fixtures, and any additions thereto,
of every nature and description belonging to the Company, wherever
located and whether now owned or in existence or hereafter acquired and
any tools necessary for the repair of any thereof and any replacement
parts therefor, now owned or hereafter acquired and in the proceeds of
any of the foregoing and all of the Company's books and records
pertaining to all of the foregoing, including, without limitation, any
manuals or computer programs, software or computer codes pertaining to
the maintenance or usage of any such Equipment.
"Event of Default" shall mean any of the events specified in
Article 8 of the Credit Agreement, provided that any requirement for
the giving of notice, or the lapse of time, or both has been satisfied.
"General Intangibles" shall mean any personal property
(including things in action) other than goods, accounts, contract
rights, chattel paper, documents and instruments, and shall include,
without limitation, all customer lists, trade secrets, goodwill,
patents, trademarks, trade names, service marks, copyrights, licenses,
franchise rights and all other intangible assets, now owned or
hereafter acquired and all proceeds of any of the foregoing and all of
the Company's books and records pertaining to all of the foregoing.
"Inventory" shall mean and include all goods, merchandise and
other personal property of every nature and description belonging to
the Company held for sale or lease wherever located and whether now
owned or in existence or hereafter acquired, and including, without
limitation: all names and marks affixed thereto for purposes of selling
or identifying the same or the seller or manufacturer thereof; all raw
materials and supplies used or consumed in the Company's business; work
in process; finished goods, and in all returns and refunds (applicable
thereto), and the right to collect the same and in the proceeds of any
of the foregoing, all
documents of title, whether negotiable or non-negotiable, with respect
to the foregoing, and all books and records pertaining to all of the
foregoing.
"Obligations" shall mean any and all liabilities and
obligations of the Company to the Bank of every kind whether arising
under this Agreement, the Credit Agreement, or any other agreement of
the Company with the Bank, including any liability of the Company
pursuant to any guarantee executed by the Company in favor of the Bank,
however evidenced and whether now existing or hereafter incurred,
originally contracted with the Bank alone or with another or others, or
as agent for another or others, secured or not secured, direct or
indirect, matured or not matured, absolute or contingent, now due or
hereafter to become due (including, without limitation, any and all
costs and reasonable attorneys' fees incurred by the Bank in the
collection, whether by suit or by any other means of any of the
Obligations hereunder) and any amendment, modification, extension or
renewal of any of the foregoing.
"UCC" shall mean the New York Uniform Commercial Code, as
amended from time to time.
Section 1.2. Usage. Any term not otherwise defined herein
-----
shall be deemed to be defined in accordance with the definition
thereof ascribed to it under the UCC.
SECTION 2. SECURITY INTEREST
-----------------
As collateral security for the prompt, complete and unconditional
payment and performance of the Obligations, the Company does hereby grant to the
Bank a continuing first priority security interest in and to the Collateral.
Such security interest shall continue until terminated by a written agreement
executed by the Bank, notwithstanding the fact that there may be no Obligations
outstanding from time to time. As additional security for the payment of the
Obligations, the Company hereby grants to the Bank a continuing lien, security
interest and right of set-off in and to all property of the Company, and the
proceeds thereof, now or hereafter actually or constructively held or received
by or for the Bank for any purpose, including safekeeping, custody, pledge,
transmission and collection, and the Bank shall have a continuing lien and/or
right of set-off for the amount of any of the Obligations upon all of the
Company's deposits (general and special) and credits with the Bank. The Bank is
authorized at any time or from time to time, during the existence and
continuation of an Event of Default, with or without notice to the Company, to
apply all or part of such property, deposits or credits to any of the
Obligations in such amounts as the Bank may elect in its sole
and absolute discretion, although the Obligations may be contingent or
unmatured, and whether or not the Collateral may be deemed adequate.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF COMPANY
-----------------------------------------
The Company represents and warrants to the Bank, and shall be deemed to
continually do so, as long as this Agreement shall remain in force, as follows:
3.1 Corporate Existence. The Company is duly organized and validly
-------------------
existing and is in good standing under the laws of each jurisdiction in which it
transacts its business, has the power to own its assets and to transact the
business in which it presently is engaged and to subject the Collateral to the
security interest herein provided.
3.2 Corporate Power and Authorization. The Company is authorized to
---------------------------------
enter into this Agreement and is empowered to implement and carry out the
provisions hereof, and has taken all necessary actions, corporate or otherwise,
in respect thereto.
3.3 Corporate Name. The full, complete and accurate legal name of the
--------------
Company is correctly stated above the signature line of the Company at the end
hereof. Any other name (including trade names) by which the Company or any
predecessor of the Company has been known in the past five (5) years is
disclosed on Schedule 3.3 hereof.
3.4 Account Status. Each Account is a true and current statement of the
--------------
actual indebtedness incurred by each Account Debtor with respect thereto, and
arises out of or in connection with the sale or lease of goods or the rendering
of services by the Company to each such Account Debtor. None of the Accounts are
due from any agency or instrumentality of the United States government or any
state or local government or agency.
3.5 Account Payment. None of the monies due or to become due with
---------------
respect to any Account is represented by any promissory note, chattel paper or
other instrument which has not been delivered to the Bank.
3.6 Ownership of Collateral. The Company is the owner of the Collateral
-----------------------
free and clear of all security interests or encumbrances of any kind, except as
created by this Agreement or as permitted by the Credit Agreement, and it does
not sell, transfer, factor or otherwise convey any of the Accounts Receivable.
Each Account Debtor with respect thereto owes the full amount thereof without
defenses, counterclaims or offsets of any kind or nature whatsoever, except for
bona fide returns for damaged goods or bona
fide delivery errors thereto. The Company does not sell or transfer the
Inventory, except in the ordinary course of business.
3.7 Licensing Agreements. The sale of goods, the rendering of services
--------------------
by the Company in relationship to the Collateral or the granting of a security
interest in the Collateral is not subject to or restricted by the terms of any
agreement pertaining to the licensing or assigning or the general or exclusive
right to the use of any patent, trademark, trade secret or copyright to which
the Company is a party.
3.8 Inventory Existence. The items making up the Inventory are all
-------------------
genuine and saleable in the ordinary course of business of the Company.
3.9 Equipment Status. The Equipment does not comprise a part of
----------------
Inventory.
3.10 Collateral Information. The chief executive office of the Company,
----------------------
its principal place of business, the location of all Inventory and Equipment,
the location at which the Company maintains its books and records with respect
to Accounts, each of the Company's tradename(s), and tradestyle(s) and the
Company's records pertaining to the Collateral and the address for the payment
of its invoices for the Accounts are as set forth below.
3.11 Enforceable Security Interest. The provisions of this Agreement
-----------------------------
are effective to create a legal, valid and enforceable first priority (except
where disclosed in any Schedule annexed hereto) security interest in favor of
the Bank in all right, title and interest of the Company in the Collateral, and
when financing statements have been filed in the appropriate offices in each of
the jurisdictions where the Company maintains its Accounts or has its chief
executive office or where any Equipment or Inventory is located, the Company
shall have granted a fully perfected first (except where disclosed in any
Schedule annexed hereto) lien on, and security interest in, all right, title and
interest of the Company in the Collateral.
SECTION 4. AFFIRMATIVE COVENANTS
---------------------
4.1 Payment of Obligations. The Company shall pay or perform all of the
----------------------
Obligations secured hereby when due.
4.2 Maintenance of Collateral. The Company shall, at any time and from
-------------------------
time to time, at its own expense, continually take such steps necessary and
prudent to protect the security interest of the Bank in the Collateral
including, without limitation, the following:
(a) Keep and maintain the books and records pertaining to the
Accounts at the location of its chief executive office, its principal
place of business or the location utilized by the Company for the
sending of invoices as set forth below and will change the same only
with 60 days prior written consent of the Bank;
(b) Keep and maintain the Inventory and Equipment at each of
the locations as set forth below and will move the same therefrom only
with 60 days prior consent of the Bank , except the Company may sell
Inventory to its customers in the ordinary course of business;
(c) Keep and maintain separate books and records relating to
the Collateral in form and substance satisfactory to the Bank at its
principal place of business, as set forth below, and move the same only
with 60 days prior written consent of the Bank;
(d) Maintain the Equipment in good operating condition and
repair and keep the Equipment at each of its place(s) of business as
set forth below and move the same therefrom only with 60 days prior
written consent of the Bank;
(e) Upon 3 Business Days prior notice, allow the bank or its
representatives free access to such books and records and to the
Collateral, at all reasonable times for the purpose of examination,
verification, copying, extracting and other reasonable purposes as the
Bank may require;
(f) Deliver to the Bank, promptly at its reasonable request,
originals of all schedules, lists, invoices, bills of lading, documents
of title, purchase orders, receipts, chattel paper, instruments and
other items relating to the Collateral;
(g) If there exists a Default (as defined in the Credit
Agreement), make, stamp, or record such entries or legends on any of
the Company's books and records relating to the Collateral as the Bank
shall reasonably request from time to time, including without
limitation, notation of the security interest of the Bank on any
certificates of title or other evidence of ownership outstanding with
respect thereto;
(h) Post notices upon the Equipment or Inventory as the Bank
shall reasonably request;
(i) Keep the Collateral free of, and defend the Collateral
from all liens and encumbrances, except the security interest granted
to the Bank and as permitted by the Credit Agreement and the Company
shall not sell, discount, transfer or otherwise dispose of the
Collateral or any interest therein, in bulk or otherwise, except
Inventory in
the ordinary course of the Company's business to its
customers, without the prior written notice to and the written
consent of the Bank;
(j) If there exists a Default (as defined in the Credit
Agreement), post notices in and about designated areas where the
Collateral or any portion thereof may be stored or where the books and
records of the Company are maintained pertaining to the Collateral from
time to time, as the Bank shall reasonably request;
(k) Execute and deliver to the Bank such other and further
documents, instruments or writings (including without limitation
additional financing statements or continuations to be filed in any
jurisdiction) which the Bank may reasonably deem necessary and/or
advisable in order to evidence, effectuate, perfect or maintain the
Bank's security interest in the Collateral and the rights, remedies and
other powers available to the Bank under this Agreement;
(l) Keep the Equipment from becoming fixtures unless the
Collateral or any part thereof is presently classified as such;
(m) Promptly notify the Bank of the existence of any material
claims, liens, security interests, rights or other encumbrances with
respect to any of the Collateral;
(n) Promptly notify the Bank in the event of any material loss
or damage to the Collateral or of any material adverse change in the
Company's business or in the value of the Collateral, or of any other
occurrence which could materially and adversely affect the security
interest of the Bank therein;
(o) Pay all expenses incurred in the purchase, manufacture,
delivery, use, repair, storage or other handling of the Collateral and
all taxes which are or may become a lien on the Collateral promptly
when due, unless such expenses, taxes or liens are being contested in
good faith by appropriate proceedings and no proceeding to enforce any
tax liens against the Collateral has begun, and in any event reimburse
the Bank for any expenses which it might incur in satisfying such
expenses, liens or taxes, which the Bank may reasonably incur, in its
sole discretion, to protect the Collateral;
(p) Maintain insurance on the Collateral of such types,
coverage, form and amount as is reasonably satisfactory to the Bank and
the Company shall reimburse the Bank, on demand, for any payments made
by the Bank, at its option, to maintain such insurance;
(q) Supply the Bank with certificates as to the continuance of
such insurance and at the Bank's request, all such insurance shall be
payable to the Bank and the Company as their interests shall appear and
shall provide for thirty (30) days prior written notice of cancellation
to the Bank;
(r) Provide immediate written notice to the Bank and to
insurers, if any, of any material loss or damage to the Collateral and
promptly file proofs of such loss with such insurers;
(s) Permit the Bank to apply any insurance proceeds received
by it to be paid against any Obligations, whether or not then due, at
its discretion;
(t) Provide at least 30 days prior written notice to the Bank
of any change of the Company's name, any trade name, any trade style,
its chief executive office, its principal place of business or any
address for the payment of any Accounts or such other places where
Inventory, Equipment or other Collateral may now or hereafter be kept
or maintained by or on behalf of the Company; and
(u) Keep the Collateral, at the Company's cost and expense, in
good and merchantable condition.
4.3 Expenses of the Bank. The Company shall reimburse the Bank for all
---------------------
expenses including, without limitation, disbursements and any other costs and
fees incurred by the Bank in connection this Agreement or with the Collateral,
including, without limitation, any reasonable attorneys' fees.
SECTION 5. [Intentionally Omitted]
SECTION 6. BANK'S RIGHTS AND REMEDIES
--------------------------
6.1 General Rights. The rights of the Bank shall at all times be those
--------------
of a secured party under the UCC and without limiting the generality of the
foregoing, the Bank shall have the additional rights set forth in this Section.
6.2 Rights upon Default. Upon the occurrence or continuance of any
-------------------
Event of Default hereunder, the Bank may declare any or all of the Obligations
to be immediately due and payable without presentment, demand, protest, or
notice of any kind, all of which are expressly waived, notwithstanding anything
to the contrary contained in any instrument evidencing any of the Obligations.
The Company further authorizes the Bank and does hereby irrevocably make,
constitute and appoint the Bank and any officer or agent thereof, with full
power of substitution, as the Company's true and lawful attorney-in-fact with
full power, in its own name or in the
name of the Company: (a) to endorse any notes, checks, drafts, money orders or
other instruments of payment (including payments payable under or with respect
to any policy of insurance) relating to the Collateral or in connection
therewith, to sign and endorse any invoices, drafts against debtors,
assignments, verifications and notices in connection with accounts and other
documents relating to the Collateral; (b) to give written notice to such
officialsof the United States Post Office to effect such change or changes of
address so that all mail addressed to the Company may be delivered directly to a
Post Office Box or to such other depository as may be selected by the Bank and
consented to by the Company and to receive, open and dispose of mail addressed
to the Company or as otherwise agreed by the Company; (c) to pay or discharge
taxes, liens, security interests or other encumbrances levied or placed on or
threatened against the Collateral; (d) to receive payment of, receipt for,
settle, compromise or adjust and give discharges and releases for or in respect
of any and all moneys, claims and other amounts due and to become due at any
time under or rising out of the Collateral; (e) to defend any suit, action or
proceeding brought against the Company with respect to any Collateral; (f) to
settle, compromise or adjust any suit, action or proceeding described above and
in connection therewith, to give such discharges or releases as the Bank may
deem appropriate and, generally, to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Collateral as fully and
completely as though the Bank was the absolute owner thereof for all purposes;
(g) without limiting the generality of the foregoing and with respect to the
Accounts; (i) to take, demand, collect, receive and give acquittances, releases
and receipts and for any and all moneys due or to become due in the name of the
Company or in the name of the Bank or otherwise and to take possession of and
endorse and collect any notes, checks, drafts, money orders or other instruments
or payment (including payments payable under or with respect to any policy of
insurance) relating thereto or in connection therewith and to file any claim and
to take any other action in any court of law or equity or otherwise deemed
appropriate by the Bank for the purpose of collecting any and all such moneys
whenever payable relating thereto, although the Bank shall not be required or be
obligated in any manner to make any demand or to make any inquiry as to the
nature of sufficiency of any payment received by it, or to present or file any
claim or take any action to collect or enforce the payment of any amounts which
may have been assigned to it or to which it may be entitled hereunder at any
time or times; and (ii) to direct obligors respecting Accounts or any other
party liable for the payment thereof to make payment of any and all moneys at
any time payable in connection therewith directly to the Bank or to an agent
specified by it; and notwithstanding the foregoing, neither this Agreement nor
the receipt by the Bank of any payment pursuant thereto or hereto shall cause
the Bank to be under any obligation or liability in any respect to any obligor
or any other party for the performance or observance by any of the
representations,
warranties, conditions or terms of any invoice, agreement or other document
issued or executed in connection with the Accounts and in connection with the
foregoing, the Company agrees that (1) it will not renew or extend the time of
payment of any Account, (2) it will furnish to the Bank all original invoices or
papers which relate to the creation of the Account, and (3) with respect to any
Accounts which are collected by the Company, it will remit such collections
promptly to the Bank in the form received (with appropriate endorsements) and,
until remitted, it will hold such collections in trust for the Bank; and (h)
without limiting the generality of the foregoing and with respect to the
Equipment and Inventory, the Bank shall also have the right, without notice to
the Company, to enter upon and into the premises of the Company without
liability for trespass and to remove all of the Equipment and Inventory and all
books, records, invoices and other documentation or materials relative thereto.
The Bank may require the Company to assemble or package the Equipment and
Inventory and make it available to the Bank, at a location to be designated by
the Bank, reasonably convenient to the parties where it will remain at the
Company's expense pending sale or other disposition by the Bank.
6.3 Sale of the Collateral. In the event the Bank determines that the
----------------------
Collateral should be sold to satisfy all or any part of the Obligations, the
Bank may dispose of the Collateral in whole or in part at public or private
sale, and any notice required to be given shall be given in accordance with
Section 7.4 herein at least five (5) days before the proposed sale. The parties
agree said notice shall be reasonable, provided, however, the Bank need not give
such notice with respect to Collateral which is perishable or threatens to
decline speedily in value or is a type customarily sold on a recognized market.
At any such sale the Bank may purchase the Collateral free from, and discharged
of all trusts, claims, rights of redemption and equities of the Company, all of
which are hereby waived and released. The Company shall remain liable for any
deficiency resulting from any sale of the Collateral and shall pay such
deficiency promptly on the Bank's demand.
6.4 Expense of Collection and Sale. The Company agrees to pay all
------------------------------
reasonable costs and expenses incurred by the Bank in enforcing, collecting or
realizing upon the Obligations or the Collateral (including, without limitation,
reasonable attorneys' fees).
6.5 Financing Statements. Where permitted by applicable law, the Bank
---------------------
is authorized to file financing statements relating to the Collateral without
the Company's signature thereon, executed only by the Bank and at the expense of
the Company. The Company will, however, at the request of the Bank, execute any
financing statement or amendment of any financing statement with respect to the
Collateral. Upon the Company's failure to do so, any officer of the Bank is
authorized as the Company's agent and in its name to
execute any such financing statement or amendment to any such
financing statement.
6.6 Exercise of Remedies. If any Obligations are now or hereafter
--------------------
secured by property other than the Collateral, or by any guaranty, endorsement
or property now or hereafter owned by any other person, firm or corporation,
then the Bank shall have the right in its sole discretion to determine, which
rights, security, liens, security interests or remedies the Bank shall at any
time pursue, relinquish, subordinate, modify or take any other action with
respect thereto, without in any way modifying or affecting any such rights or
any of the Bank's rights hereunder.
SECTION 7. MISCELLANEOUS
-------------
7.1 Limited Role of the Bank. The relationship between the Company and
------------------------
the Bank shall be solely that of debtor and secured party, respectively. The
Bank shall not have any fiduciary responsibilities to the Company or with
respect to the Collateral and no joint venture exists between the Company and
the Bank. The Company and the Bank each hereby severally acknowledge that there
are no representations, warranties, covenants, undertakings or agreements by the
parties hereto as to this Agreement except as specifically provided herein. The
Bank shall have no obligation to sell or otherwise realize upon the Collateral
and shall not be responsible for, and the Company shall not assert as a defense,
the Bank's failure to realize upon the Collateral.
7.2 Choice of Law, Construction. This Agreement shall be construed in
---------------------------
accordance with the internal laws (and not the law of conflicts) of the State of
New York. If any provision of this Agreement shall be or become unenforceable or
illegal under any law, all other provisions shall remain in full force and
effect.
7.3 Consent to Jurisdiction. (a) The Company hereby irrevocably submits
-----------------------
to the non-exclusive jurisdiction of any United States federal or New York state
court in New York or Kings County in any action or proceeding arising out of or
relating to this Agreement and the Company hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in
any such court and irrevocably waives any objection it may now or hereafter have
as to the venue of any such action or proceeding brought in such a court or the
fact that such court is an inconvenient forum.
(b) The Company irrevocably and unconditionally consents to the service
of process in any such action or proceeding in any of the aforesaid courts by
the mailing of copies of such process to it, by certified or registered mail in
accordance with the terms of Section 7.4 herein.
(c) The Company agrees that nothing herein shall affect the Bank's
right to effect service of process in any other manner permitted by law and the
Bank shall have the right to bring any legal proceeding (including a proceeding
for enforcement of a judgment entered by any of the aforementioned courts)
against the Company in any other court or jurisdiction in accordance with
applicable law.
7.4 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto shall be in writing and shall be deemed to have been
duly given or made when delivered by hand, or if sent by certified mail, three
days after the day in which mailed, or, in the case of telecopier, when evidence
of receipt is obtained, or, in the case of overnight courier service, one
business day after delivery to such courier service, addressed as set forth
below, or to such other address as may be hereafter notified by the respective
parties hereto.
The Bank: Fleet Bank, N.A.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Firecom Relationship Manager
The Company: Firecom, Inc.
00-00 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: President
7.5 Waivers. The Company expressly waives notice of non-payment or
-------
protest, demand, or presentment, in relation to the Obligations or the
Collateral. No delay or omission of the Bank in exercising or enforcing any of
its rights, powers, privileges, options or remedies under this Agreement or any
other agreement or promissory note between the Bank and the Company shall
constitute a waiver thereof, and no waiver by the Bank of any Event of Default
by the Company shall operate as a waiver of any other Event of Default. Except
for the terms and provisions of any promissory notes or other security
agreements now existing or hereafter executed and delivered to the Bank by the
Company (which terms and provisions are specifically deemed to be in addition to
and not in derogation of the terms and provisions hereof), this Agreement
constitutes the entire understanding between the Company and the Bank with
respect to the subject matter hereof and supersedes all prior written or oral
communications or understandings. No term or provision of this Agreement shall
be waived, altered or modified except in writing signed by the parties hereto.
All rights and remedies of the Bank under this Agreement shall be cumulative and
not alternative or exclusive of any rights or remedies provided by law and may
be exercised by the Bank at such time or times and in such order as the Bank, in
its sole discretion, may determine and are for the sole benefit of the Bank and
the exercise or failure to
exercise such shall not result in liability to the Company or others except in
the event of willful misconduct or gross negligence by the Bank, and in no event
shall the Bank be liable for more than it actually receives as a result of the
exercise or failure to exercise such right and remedies. The Bank shall not be
liable for any failure by it to comply with any recording, rerecording, filing,
refiling or other legal requirement necessary to establish or maintain the
validity, priority or enforceability of, or the Bank's right in and to the
Collateral, or any part thereof.
7.6 Successors and Survival. This Agreement shall remain in full force
-----------------------
and effect until terminated as to future transactions by written agreement of
the parties. The Company may not transfer or assign any of its rights, interest
or obligations hereunder without the prior written consent of the Bank. This
Agreement shall be binding upon the Company and shall inure to the benefit of
the Bank and its successors and assigns and to the permitted successors and
assigns of the Company. All representations, warranties and covenants contained
herein or in any other agreement between the Bank and the Company shall survive
the execution hereof and thereof and the granting of loans or advances pursuant
hereto or thereto.
7.7 Waiver of Counterclaim; Setoff. In any litigation initiated by the
------------------------------
Bank whether pursuant hereto or otherwise in which the Company and the Bank are
adverse parties the Company waives the right to interpose any set-off or
counterclaim of any nature or description against the Bank.
7.8 Captions. The headings of the Section in this Agreement are for
--------
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
7.9 Severability. If any provision of this Agreement shall be or become
------------
illegal or unenforceable in whole or in part for any reason whatsoever, the
remaining provisions shall nevertheless be deemed valid, binding and subsisting.
7.10 WAIVER OF JURY TRIAL. COMPANY AND BANK HEREBY WAIVE TRIAL BY JURY
--------------------
IN ANY ACTION OR PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER.
IN WITNESS WHEREOF, this Agreement has been executed this 29th day of
April, 1999.
FIRECOM, INC.
By:/s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx
Vice President of Finance
Company's Executive Office and
Principal Place of Business:
00-00 00xx Xxxxxx Xxxxxxxx, Xxx Xxxx 00000
Location of books and records
relating to the Collateral,
including all Accounts:
00-00 00xx Xxxxxx Xxxxxxxx, Xxx Xxxx 00000
Company's Address(s) on Invoice for
Accounts Receivable:
00-00 00xx Xxxxxx Xxxxxxxx, Xxx Xxxx 00000
Location(s) of Inventory:
00-00 00xx Xxxxxx Xxxxxxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX. 00000
00-00 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
00-00 Xxxxxx Xxx., Xxxxxxxx, Xxx Xxxx 00000
00 Xxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Location(s) of Equipment:
00-00 00xx Xxxxxx Xxxxxxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX. 00000
00-00 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
00-00 Xxxxxx Xxx., Xxxxxxxx, Xxx Xxxx 00000
00 Xxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Company's Tradename(s):
NONE
Company's Tradestyle(s):
NONE
SCHEDULE 3.3
------------
NONE
