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Exhibit 22
CONTINUING GENERAL SECURITY AGREEMENT
Dated: 5 December 1996
As used in this Agreement:
"Collateral" means all right, title and interest of the Obligor in and to any
and all of the following property, whether now or hereafter existing or acquired
and wherever located, all products and Proceeds (including but not limited to
insurance proceeds) of such property, wherever located and in whatever form, and
all books and records pertaining to such property and all other property of the
Obligor in which Bank now or hereafter is granted a security interest pursuant
to this Agreement or otherwise:
[▇▇▇▇ or initial the applicable boxes]
Accounts, |_| All Accounts (including, without limitation, all
General accounts receivable), General Intangibles (including,
Intangibles, without limitation, contract rights and tax refunds) and
Chattel all returned or repossessed Goods, all Chattel Paper
Paper and (including, without limitation, leases) and Instruments,
Instruments and all interests of the Obligor in all guarantees,
security agreements and other property securing the
payment or performance of obligations under any of the
foregoing.
Imported |_| All Imported Inventory, and all Documents (including,
Inventory without limitation, all documents of title, transport or
and otherwise) relating to such Inventory.
Documents
Inventory |_| All Inventory of every description (including, without
and limitation, Imported Inventory, raw materials, work in
Documents process and finished Goods), and all Documents
(including, without limitation, all documents of title,
transport or otherwise) relating to such Inventory.
Equipment |_| All Equipment of every description and all Accessions
thereto.
Fixtures |_| All Fixtures of every description and all Accessions
thereto located at the Collateral Location or at_______
_______________________________________________________
_______________________________________________________.
Specific |X| All of the following property: Custody Account # ___ in
Property the name of ▇▇▇▇▇▇▇▇▇▇ Associates L.P. and any and all
present and future securities, cash, interest, accounts,
contract rights, instruments, dividends, mutual fund
shares, security entitlements, financial assets, general
intangibles and other property held in such account or
received or receivable in respect of or in exchange for
any such investments held in such accounts and all
interest and dividends on and proceeds of any of the
foregoing.
All Property |_|* All property of every description (including, without
limitation, all Accounts, General Intangibles, Chattel
Paper, Instruments, Inventory, Documents, Equipment,
Fixtures, Goods and all Accessions to any of the
foregoing).
* If no box is marked, Collateral shall mean All Property.
"Collateral Location" means the following address(es) where all Collateral
consisting of Inventory, Equipment, Fixtures or other tangible property is
located: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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"Obligor" means ▇▇▇▇▇▇▇▇▇▇ Associates L.P. and its successors and assigns, and
if more than one person is named as Obligor, "Obligor" shall mean each, any or
all of them, and their liabilities and obligations hereunder shall be joint and
several. Obligor is/are:
|_| individual(s)
|_| a corporation organized under the laws of ___________________________.
|_| a partnership organized under the laws of __________________________.
|_| a limited partnership organized under the laws of __________________.
|_| other (specify) _____________________________________________________.
In consideration of any extension of credit or other financial
accommodation heretofore, now or hereafter made by Bank to or for the account of
the Obligor, or to or for the account of any other Person made by Bank at the
request of the Obligor or with respect to which the Obligor's agreements
hereunder have been required by Bank, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the Obligor, the
Obligor agrees as follows:
1. Security Interest; Right of Set-Off. As security for the prompt and
unconditional payment of any and all Obligations, the Obligor does hereby
grant to Bank a continuing lien upon and security interest in, and does
hereby pledge, assign and transfer to Bank, all of the Collateral. In
order to secure further the payment of the Obligations, Bank is hereby
given a continuing lien upon and is granted a security interest in any
and all monies, securities and any and all other property of the Obligor
and the proceeds thereof, now or hereafter actually or constructively
held or received by or in transit in any manner to or from Bank, its
correspondents or agents from or for the Obligor, whether for
safekeeping, custody, pledge, transmission, collection or for any other
purpose (whether or not for the express purpose of being used by Bank as
collateral security), or coming into the possession of Bank or its
correspondents or agents in any way, or placed in any safe deposit box
leased by Bank to the Obligor, and all such monies, securities and other
property shall also constitute "Collateral" and shall be held subject to
all the terms of this Agreement as collateral security for the prompt and
unconditional payment of any and all Obligations. Obligor hereby assigns
and grants Bank a security interest in, and Bank is also given a
continuing lien on and/or right of set-off for the amount of the
Obligations with respect to, any and all deposits (general or special)
and credits of the Obligor with, and any and all claims of the Obligor
against, Bank at any time existing, and Bank is hereby authorized at any
time or times, without prior notice, to apply such deposit or credits, or
any part thereof, to the Obligations in such amounts as Bank may elect,
although the Obligations may be contingent or unmatured, and whether the
collateral security therefor is deemed adequate or not.
2. Representations of Obligor. The Obligor represents and warrants to bank
that (a) no financing statement or other filing listing any of the
Collateral as collateral is on file in any jurisdiction (other than any
financing statement filed on behalf of Bank, as secured party); (b) the
chief executive office of the Obligor, if any, is located at the address
set forth in the space provided therefor in this Agreement; (c) all
Collateral, other than intangible property and property which is in the
possession of Bank or its agents, is located at the Collateral Location(s)
and the Obligor has no place of business other than the chief executive
office specified herein, if any, and the Collateral Location(s); (d) the
Obligor has not created and is not aware of any Lien on or affecting any
Collateral other than the lien created by this Agreement in favor of Bank;
(e) if the Obligor is not a natural person, the execution, delivery and
performance of this Agreement have been duly authorized by all required
corporate, partnership or other applicable actions of the Obligor; (f)
this Agreement constitutes a valid, binding and enforceable obligation of
the Obligor; (g) the execution, delivery and performance of this Agreement
do not violate any law or any agreement or undertaking to which the
Obligor is a party or by which the Obligor may be bound and do not result
in the imposition of any Lien upon any Collateral other than the Lien in
favor of Bank created by this Agreement; (h) all consents, approvals,
authorizations, permits and licenses necessary for the Obligor to enter
and perform its obligations under this Agreement and the Obligations
and/or to conduct its business have been obtained; (i) the Obligor did not
have or conduct business under any name or trade name in any jurisdiction
during the past six years other than its name and trade names, if any, set
forth on the signature page of this Agreement, and the Obligor is entitled
to use such name and trade names; and (j) the Obligor is the legal and
beneficial owner of all Collateral specifically identified on page 1 of
this Agreement (alongside the box designated "Specific Property") and any
Collateral specifically identified in any rider, schedule or exhibit to
this Agreement.
3. Covenants. Unless and until all of the Obligations have been indefeasibly
paid in full and all commitments of Bank to extend credit which, once
extended, would give rise to Obligations, have expired or been terminated,
the Obligor shall: (a) keep the Collateral free and clear of any Lien of
any kind other than the Lien created by this Agreement; (b) promptly pay,
when due, all taxes and transportation, storage,
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warehousing and other charges and fees affecting or arising out of the
Collateral and defend the Collateral against all claims and demands of all
Persons at any time claiming any interest therein adverse to or the same
as that of Bank; (c) at all times keep all insurable Collateral insured at
the expense of the Obligor to Bank's satisfaction against loss by fire,
theft and any other risks to which the Collateral may be subject, and
cause all such policies to be endorsed in favor of Bank and to name Bank
as loss payee and as an additional insured, and, if Bank so requests,
deposit the same with Bank, and cause all such policies to provide that
each insurer will give Bank not less than 30 days' notice in writing prior
to the exercise of any right of cancellation; (d) keep the Collateral in
good condition at all times (normal wear and tear excepted) and provide
Bank with such information as Bank may from time to time request with
respect to the location of the Collateral and the Obligor's places of
business; (e) give Bank at least 30 days' prior written notice before
changing the Obligor's name or chief executive office or changing the
location or disposing of any Collateral (other than in connection with the
sale of any Inventory in the ordinary course of business); (f) not sell or
otherwise dispose of any Collateral except on commercially reasonable
terms and in the ordinary course of business; (g) permit Bank, by its
officers and agents, to have access to, examine and copy at all reasonable
times the Collateral, properties, minute books and other corporate or
partnership records, books of accounts, and financial and other business
records of the Obligor (including, without limitation, all books, records,
ledger cards, computer programs, tapes and computer disks and diskettes
and other property recording, evidencing or relating to any Collateral);
and (h) promptly notify Bank upon the occurrence of any Event of Default
of which the Obligor has knowledge.
4. Events of Default. The occurrence of any of the following events shall
constitute an Event of Default: (a) the failure of the Obligor to pay when
due any of the Obligations, (b) any representation or warranty of the
Obligor to Bank in this Agreement or any other instrument or agreement
with or in favor of Bank shall prove to be inaccurate or untrue; (c) the
breach by the Obligor of any covenant in this Agreement or in any other
instrument or agreement with or in favor of Bank; (d) Bank shall in good
▇▇▇▇▇ ▇▇▇▇ itself insecure at any time with respect to the Obligor's
financial condition or ability to pay the Obligations; or (e) Bank shall
have determined in good faith that the value of the Collateral has
materially decreased after the date of this Agreement. The occurrence of
any of the following events with respect to any Obligor, maker, endorser,
acceptor, surety or guarantor of, or any other party to, the Obligations
or the Collateral shall also constitute an Event of Default: (aa) a
default in respect of any liabilities, obligations or agreements, present
or future, absolute or contingent, secured or unsecured, matured or
unmatured, several or joint, original or acquired, of any of the
Responsible Parties to or with Bank; (bb) death (in the case of any of the
Responsible Parties who is an individual) or dissolution (in the case of
any of the Responsible Parties which is not a natural person); (cc) death
or suspension of the usual business activities of any member of any
partnership included in the term "the Responsible Parties"; (dd) making,
or sending a notice of, an intended bulk transfer; (ee) granting a
security interest to anyone other than Bank in any property including,
without limitation, the rights of any of the Responsible Parties in the
Collateral; (ff) suspension of payment; (gg) the whole or partial
suspension or liquidation of its usual business; (hh) failing, after
demand, to furnish to Bank any financial information or to permit
inspection of books and records of account; (ii) making any
misrepresentation to Bank for the purpose of obtaining credit or an
extension of credit; (jj) failing to pay any tax, or failing to withhold,
collect or remit any tax or tax deficiency when assessed or due; (kk)
failing to pay when due any obligations, whether or not in writing; (ll)
making of any tax assessment by the United States or any state or foreign
country; (mm) entry of a judgment or issuance of an order of attachment or
an injunction against, or against any of the property of, any of the
Responsible Parties; (nn) commencement against any of the Responsible
Parties of any proceeding for enforcement of a money judgment under
Article 52 of the New York Civil Practice Law and Rules or amendments
thereto; (oo) if any of the Responsible Parties or if any of the
Obligations or Collateral at any time fails to comply with Regulation U of
the Federal Reserve Board or any amendments thereto; (pp) the issuance of
any warrant, process or order of attachment, garnishment or lien, and/or
the filing of a lien as a result thereof against any of the property of
the Obligor whether or not Collateral; (qq) any of the Responsible Parties
challenges or institutes any proceeding, or any proceedings are
instituted, which challenge the validity, binding effect or enforceability
of this Agreement; (rr) any of the Responsible Parties makes, receives or
retains any payment on account of indebtedness subordinated to the
Obligations in violation of the terms of such subordination; (ss) any of
the Responsible Parties or any partnership of which any of the Responsible
Parties is a member is expelled from or suspended by any stock or
securities exchange or other exchange; (tt) any of the Responsible Parties
shall make an assignment for the benefit of creditors or a composition
with creditors, shall be unable or admit in writing an inability to pay
its respective debts as they mature, shall file a petition in bankruptcy,
shall become insolvent (however such insolvency may be evidenced), shall
be adjudicated insolvent or bankrupt, shall petition or apply to any
tribunal for the appointment of any receiver, liquidator or trustee of or
for any of the Responsible Parties or any substantial part of the property
or assets of any of the Responsible Parties, shall commence any
proceedings relating to it under any bankruptcy, reorganization,
arrangement, readjustment of debt,
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receivership, dissolution or liquidation, law or statute of any
jurisdiction, whether now or hereafter in effect, or there shall be
commenced against any of the Responsible Parties any such proceeding, or
any order, judgment or decree approving the petition in any such
proceeding shall be entered, or any of the Responsible Parties shall by
any act or failure to act indicate its consent to, approval of or
acquiescence in any such proceeding or in the appointment of any receiver,
liquidator or trustee of or for any of the Responsible Parties or any
substantial part of the property or assets of any of the Responsible
Parties, or shall suffer any such appointment, or any of the Responsible
Parties shall take any action for the purpose of effecting any of the
foregoing, or any court of competent jurisdiction shall assume
jurisdiction with respect to any such proceeding or a receiver or trustee
or other officer or representative of the court or of creditors, or any
court, governmental officer or agency, shall under color of legal
authority, take and hold possession of any substantial part of the
Collateral or the property or assets of any of the Responsible Parties; or
(uu) Bank shall in good ▇▇▇▇▇ ▇▇▇▇ itself insecure with respect to the
financial condition of any of the Responsible Parties.
5. Remedies of Bank.
(a) After the occurrence of an Event of Default, Bank shall have no
obligation to make further loans, extensions of credit or other
financial accommodations to or on behalf of the Obligor, anything in
any other agreement to the contrary notwithstanding.
(b) After the occurrence of an Event of Default, other than an Event of
Default referred to in clause (tt) of the second sentence of Section
4, Bank may declare by notice to the Obligor, any and all
Obligations to be immediately due and payable and in the case of any
Event of Default referred to in clause (tt) of the second sentence
of Section 4 all of the Obligations shall automatically be and
become due and payable, in either case without presentment, demand,
protest or notice of any kind, all of which are hereby waived by the
Obligor, anything in any other agreement to the contrary
notwithstanding.
(c) After the occurrence of an Event of Default, Bank may, without
notice to or demand (other than any notice required by law, the
giving of which is not waivable), upon the Obligor (all of which
are hereby waived by the Obligor), without releasing the Obligor
from any obligation under this Agreement or any other instruments
or agreements with Bank and without waiving any rights Bank may
have or impairing any declaration of default or election to cause
the Collateral to be sold or any sale proceeding predicated on the
same: (i) demand, collect or receive upon all or any part of the
Collateral and assemble or require the Obligor, at the Obligor's
expense, to assemble all or any part of the Collateral and, if Bank
so requests, the Obligor shall assemble the Collateral and make it
available to Bank at a place to be designated by Bank; (ii) without
notice, demand or other process and without charge enter any of the
Obligor's premises and without breach of peace until Bank completes
the enforcement of its rights in the Collateral, take possession of
such premises or place custodians in exclusive control thereof,
remain on such premises and use the same and any of the Obligor's
equipment for the purpose of completing any work-in-process,
preparing any Collateral for disposition and disposing of or
collecting any Collateral, and in exercise of its rights under this
Agreement, without payment of compensation of any kind, use any and
all trademarks, trade styles, trade names, patents, patent
applications, licenses, franchizes and the like to the extent of
the Obligor's rights therein and the Obligor hereby grants a
license and the right to grant sublicenses for that purpose; (iii)
in such manner and to such extent as Bank may deem necessary to
protect the Collateral or the interests, rights, powers or duties
of Bank, enter into and upon any premises of the Obligor and take
and hold possession of all or any part of the Collateral (the
Obligor hereby waiving and releasing any claim for damages in
respect of such taking) and exclude the Obligor and all other
Persons from the Collateral, operate and manage the Collateral and
rent and lease the same, perform such reasonable acts of repair or
protection as may be reasonably necessary or proper to conserve the
value of the Collateral, collect any and all income, rents, issues,
profits and proceeds from the Collateral, the same being hereby
assigned and transferred to Bank, and from time to time apply or
accumulate such income, rents, issues, profits and proceeds in such
order and manner as Bank, in its sole discretion, shall instruct,
it being understood that the collection or receipt of income,
rents, issues, profits or proceeds from the Collateral after
declaration of default and election to cause the Collateral to be
sold under and pursuant to the terms of this Agreement shall not
affect or impair any event of default or declaration of default
under any agreement or instrument between the Obligor and Bank or
election to cause any Collateral to be sold or any sale proceedings
predicated on the same, but such proceedings may be conducted and
sale effected notwithstanding the collection or receipt of any such
income, rents, issues, profits and proceeds; (iv) take control of
any and all of the Accounts, contractual or other rights that are
included in the
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Collateral and Proceeds arising from any such Accounts or
contractual or other rights, enforce collection, either in the name
of Bank or in the name of the Obligor, of any or all of the
Accounts, contractual and other rights that are included in the
Collateral and Proceeds by suit or otherwise, receive, receipt for,
surrender, release or exchange all or any part of such Collateral or
compromise, settle, extend or renew (whether or not longer than the
original period) any indebtedness under such Collateral; (v) sell
all or any part of the Collateral at public or private sale at such
place or places and at such time or times and in such manner and
upon such terms, whether for cash or credit, as Bank in its sole
discretion may determine; (vi) endorse in the name of the Obligor
any Instrument, however received by Bank, representing Collateral or
Proceeds of any of the Collateral; (vii) require the Obligor to turn
over, or instruct the financial institutions holding the same to
turn over, all monies and investments in any of Obligor's accounts
to Bank; and (viii) exercise all the rights and remedies granted to
a secured party under the New York Uniform Commercial Code and all
other rights and remedies given to Bank under this Agreement or any
other instrument or agreement or otherwise available at law or in
equity. Bank shall be under no obligation to make any of the
payments or do any of the acts referred to in this Section 5 or
elsewhere in this Agreement and any of the actions referred to in
this Section 5 or elsewhere in this Agreement may be taken
regardless of whether any notice of default or election to sell has
been given under this Agreement (provided, however, that all notices
required by law, the giving of which may not be waived, shall be
given in accordance with such law) without regard to the adequacy of
the security for the Obligations.
(d) The Obligor hereby waives notice of the sale of any Collateral by
Bank pursuant to any provision of this Agreement or any applicable
provisions of the Uniform Commercial Code or other applicable law.
In the event that notice of the sale of Collateral cannot be waived
or Bank gives notice of such sale to the Obligor, Bank will give the
Obligor notice of the time and place of any public sale of the
Collateral or of the time after which any private sale or any other
intended disposition thereof is to be made by sending notice, as
provided below, at least five days before the time of the sale or
disposition, which provisions for notice the Obligor and Bank agree
are reasonable. No such notice need be given by Bank with respect to
Collateral which is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market.
(e) Bank may apply the net proceeds of any sale, lease or other
disposition of Collateral, after deducting all costs and expenses
of every kind incurred thereon or incidental to the retaking,
holding, preparing for sale, selling, leasing or the like of the
Collateral or in any way relating to the rights of Bank thereunder,
including attorneys' fees and expenses hereinafter provided for, to
the payment, in whole or in part, in such order as Bank may elect,
of one or more of the Obligations, whether due or not due, absolute
or contingent, making proper rebate for interest or discount on
items not then due, and only after so applying such net proceeds
and after the payment by Bank of any other amounts required by any
existing or future provision of law (including Section 9-504(l)(c)
of the Uniform Commercial Code of any jurisdiction in which any of
the Collateral may at the time be located) need Bank account for
the surplus, if any. The Obligor shall remain liable to Bank for
the payment of any deficiency, with interest at the default rate
provided for in the instruments, if any, evidencing the
Obligations, but if there is no such instrument with respect to any
Obligation or no default rate is specified therein, at a variable
rate equal to 4% above the Bank's reference lending rate applicable
to domestic commercial loans as established by Bank from time to
time, but in no event shall such rate exceed the maximum rate
allowed by law. Bank may make loans to its customers above, at or
below its reference rate.
(f) Whether or not an Event of Default shall have occurred, Bank may
sell all or any part of the Collateral, although the Obligations may
be contingent or unmatured, whenever in its discretion Bank
considers such sale necessary for its protection. Any such sale may
be made without prior demand for payment on account, margin or
additional margin or any other demands whatsoever; the making of any
such demands shall not establish a course of conduct nor constitute
a waiver of the right of Bank to sell the Collateral as herein
provided or of the right of Bank to accelerate the maturity of the
Obligations as herein provided.
6. Additional Rights of Bank and Duties of Obligor Regarding Obligations and
Collateral.
(a) If the Obligor, as registered holder of any Collateral, shall become
entitled to receive or does receive any stock certificate, option or
right, whether as an addition to, in substitution of, or in exchange
for, such Collateral, or otherwise, the Obligor agrees to accept
same as Bank's agent and to hold same in trust for Bank, and to
forthwith deliver the same to Bank in the exact form
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received, with the Obligor's endorsement when necessary or requested
by Bank, to be held by Bank as Collateral.
(b) The Obligor waives protest demand for payment, notice of default or
nonpayment to the Obligor or any other party liable for or upon any
of said Obligations or Collateral.
(c) The Obligor consents that the obligation of any party upon or of any
guarantor, surety or indemnitor for any Obligations or any
Collateral may, from time to time, in whole or in part, be renewed,
extended, modified, accelerated, compromised, settled or released
and that any Collateral or Liens for any Obligations may, from time
to time, in whole or in part, be exchanged, sold, released or
surrendered, by Bank, all without any notice to, or further assent
by, or any reservation of rights against, the Obligor, and all
without in any way affecting or releasing the liability of the
Obligor with respect to such Obligations or any security interest
hereby created.
(d) Bank shall not be liable for failure to collect or realize upon the
Obligations or upon the Collateral, or any part thereof, or for any
delay in so doing, nor shall Bank be under any obligation to take
any action whatsoever with regard thereto. Bank shall use
reasonable care in the custody and preservation of the Collateral
in its possession but need not take any steps to preserve rights
against prior parties or to keep the Collateral identifiable. Bank
shall have no obligation to comply with any recording,
re-recording, filing, re-filing or other legal requirements
necessary to establish or maintain the validity, priority or
enforceability of, or Bank's rights in and to the Collateral or any
part thereof. Bank may exercise any right of the Obligor with
respect to any Collateral. Bank shall have no duty to exercise any
of the aforesaid rights, privileges or options with respect to any
Collateral and shall not be responsible for any failure to do so or
delay in so doing.
(e) In any statutory or non-statutory proceeding affecting the Obligor
or any Collateral, Bank or its nominee may, whether or not an Event
of Default shall have occurred and regardless of the amount of the
Obligations, file a proof of claim for the full amount of any
Collateral and vote such Claim for the full amount thereof (i) for
or against any proposal or resolution; (ii) for a trustee or
trustees or for a committee of creditors; and/or (iii) for the
acceptance or rejection of any proposed arrangement, plan of
reorganization, wage earners' plan, composition or extension; and
Bank or its nominee may receive any payment or distribution and give
acquittance therefor and may exchange or release any Collateral.
(f) Whether or not an Event of Default shall have occurred, Bank may,
without notice to or demand upon the Obligor, (i) commence, appear
in or defend any action or proceeding purporting to affect all or
any part of the Collateral or the interests, rights, powers or
duties of Bank, whether brought by or against the Obligor or Bank;
and/or (ii) pay, purchase, contest or compromise any claim, debt,
lien, charge or encumbrance which in the judgment of Bank may affect
or appear to affect the Collateral or the interests, rights, powers
or duties of Bank.
(g) Any and all stocks, bonds or other securities held by Bank as
Collateral hereunder may, without notice (and whether or not a
default exists), be registered in the name of Bank or its nominee
without disclosing that Bank is a pledgee. Bank (whether or not a
default exists and regardless of the amount of the Obligations) or
its nominee may, without notice, exercise all voting and corporate
rights at any meeting of any corporation issuing such stocks, bonds
or other securities, and exercise any and all rights of conversion,
exchange, subscription or any other rights, privileges or options
pertaining to such stocks, bonds or other securities as if the
absolute owner thereof, including, without limitation, the right to
exchange, at its discretion, any and all of such stocks, bonds or
other securities for other stocks, bonds, securities or any other
property upon the merger, consolidation, reorganization,
recapitalization or other readjustment of any corporation issuing
the same or upon the exercise by the issuing corporation or Bank of
any right, privilege or option pertaining to such stocks, bonds or
other securities, and in connection therewith, to deposit and
deliver any and all of such stocks, bonds or other securities with
any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as it may
determine, all without liability except to account for property
actually received by it. Bank shall have no duty to exercise any of
the aforesaid rights, privileges or options and shall not be
responsible for any failure to do so or for any delay in so doing.
7. Sale of Collateral Consisting of Securities. The Obligor recognizes that
Bank may be unable to effect a public sale of any securities which may
constitute a portion of the Collateral by reason of certain
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prohibitions contained in the Securities Act of 1933 and applicable state
securities laws and instead may resort to one or more private sales of
such Collateral to a restricted group of purchasers who would be obliged
to agree, among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or resale
thereof. The Obligor recognizes and agrees that, because of this
restriction, sales of securities may result in prices and other terms less
favorable to the seller than if the disposition were made pursuant to a
public sale and, notwithstanding such circumstances, agrees that any such
private or limited sale or sales shall be deemed to have been made in a
commercially reasonable manner. Bank shall be under no obligation to delay
a sale of any of the securities constituting part of the Collateral for
the period of time necessary to permit the issuer of such securities to
register them for public sale under the Securities Act of 1933 or under
applicable state securities laws.
8. Collection Rights of Bank. The Obligor agrees that at any time, whether or
not an Event of Default shall have occurred, Bank shall have the right to
notify an account debtor (with respect to any Collateral consisting of
Accounts), or the obligor on any Instrument or other right or claim of the
Obligor to any payment which is Collateral, to make payment directly to
Bank, whether or not an Event of Default shall have occurred and whether
or not the Obligor was theretofore making collections on such Collateral,
and also to take control of any Proceeds Bank is entitled to under Section
9-306 of the New York Uniform Commercial Code. If any Collateral consists
of Accounts, Instruments or other rights or claims of the Obligor to any
payment, then at Bank's request, the Obligor shall promptly notify (in
manner, form and substance satisfactory to Bank) all Persons obligated to
the Obligor under any such Accounts, Instruments or other rights or claims
of the Obligor to any payment that Bank possesses a security interest in
such Accounts, Instruments or other rights or claims of the Obligor to any
payment and that all payments in respect of such Accounts, Instruments or
other rights or claims of the Obligor to any payment are to be made
directly to Bank. The Obligor shall not settle, compromise or adjust any
disputed amount, or allow any credit, rebate or discount with respect to
any Account, Instrument or other right or claim of the Obligor to any
payment which constitutes Collateral. After Bank shall have given any
notice of the type specified in the first sentence of this Section 8, any
and all amounts received by the Obligor from the account debtor or other
obligor so notified shall be promptly remitted to Bank, and until so
remitted shall be segregated by the Obligor and held in trust for Bank.
9. Additional Security. If Bank shall at any time hold security for any
Obligations in addition to the Collateral, Bank may enforce the terms of
this Agreement or otherwise realize upon the Collateral, at its option,
either before or concurrently with the exercise of remedies as to such
other security or, after a sale is made of such other security, it may
apply the proceeds upon the Obligations without affecting the status of or
waiving any right to exhaust all or any other security, including the
Collateral, and without waiving any breach or default or any right or
power whether exercised under this Agreement, contained in this Agreement,
or provided for in respect of any such other security.
10. Preservation and Protection of Security Interest; Power of Attorney. The
Obligor will faithfully preserve and protect the Lien in the Collateral
created by this Agreement and will, at its own cost and expense, cause
such Lien to be perfected and continue to be perfected and to be and
remain prior to all other Liens, so long as all or any part of the
Obligations are outstanding and unpaid, and for such purpose the Obligor
will from time to time at the request of Bank (i) make notations of the
security interest in certificates of title of Collateral, a security
interest in which is perfected by such notation, and deliver the same to
Bank, (ii) deliver possession of Collateral (concurrent with the
acquisition of such Collateral) to Bank, a security interest in which is
perfected by the taking of possession, and (iii) file or record, or cause
to be filed or recorded, such instruments, documents and notices,
including financing statements and continuation statements, as Bank may
reasonably deem necessary or advisable from time to time in order to
perfect and continue to perfect such Liens and to maintain their priority
over all other Liens. The Obligor will do all such other acts and things
and will execute and deliver all such other instruments and documents,
including further security agreements, pledges, endorsements, assignments,
and notices as Bank may reasonably deem necessary or advisable from time
to time in order to perfect and preserve the priority of the Liens in the
Collateral as contemplated by this Agreement. Bank, acting through its
officers, employees and authorized agents, is hereby irrevocably appointed
the attorney-in-fact of the Obligor to do, at the Obligor's expense, all
acts and things which Bank may reasonably deem necessary or advisable to
preserve, perfect, continue to perfect and/or maintain the priority of
such Liens in the Collateral, including the signing of financing,
continuation or other similar statements and notices on behalf of the
Obligor, and which the Obligor is required to do by the terms of this
Agreement. The Obligor hereby authorizes Bank to sign and file financing
statements with respect to the Collateral without the signature of the
Obligor. The Obligor shall pay all filing fees for financing statements
with respect to the Collateral.
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8
11. Risk of Loss; Insurance. Risk of loss of, damage to or destruction of the
Collateral is and shall remain upon the Obligor. If the Obligor fails to
obtain and keep in force insurance covering the Collateral as required by
Section 3 of this Agreement, or fails to pay the premiums on such
insurance when due, Bank may, but is not obligated to, do so for the
account of the Obligor and the cost of so doing shall thereupon become an
Obligation. Such amounts shall be payable by the Obligor upon demand by
the Bank and following demand shall bear interest at a variable rate equal
to 4% above the Bank's reference lending rate applicable to domestic
commercial loans as established by Bank from time to time, but in no event
shall such rate exceed the maximum rate allowed by law. Bank, acting
through its officers, employees and authorized agents, is hereby
irrevocably appointed the attorney-in-fact of the Obligor to endorse any
draft or check that may be payable to the Obligor in order to collect the
proceeds of such insurance or any return or unearned premiums.
12. Change in Law. In the event of the passage, after the date of this
Agreement, of any law which has the effect of changing in any way the laws
now in force for the taxation of security documents such as this Agreement
or debts secured by such security documents or the manner of the
collection of any such taxes so as in any case to affect this Agreement or
to impose payment of the whole or any portion of any taxes, assessments or
other similar charges against the Collateral upon Bank, the Obligations
shall immediately become due and payable at the option of Bank and upon 30
days notice to the Obligor.
13. Expenses. The Obligor hereby agrees to pay any and all expenses incurred
by Bank in enforcing any rights under this Agreement or in defending any
of its rights to any amounts received hereunder. Without limiting the
foregoing, the Obligor agrees that whenever any attorney is used by Bank
to obtain payment hereunder, to advise it as to its rights, to adjudicate
the rights of the parties hereunder or for the defense of any of its
rights to amounts secured, received or to be received hereunder, Bank
shall be entitled to recover all reasonable attorneys' fees and
disbursements, court costs and all other expenses attributable thereto.
14. Notices. Each notice or other communication hereunder shall be in writing,
shall be sent by messenger, by registered or certified mail or by
facsimile transmitter or tested telex, and shall be effective when sent,
and shall be sent as follows:
If to the Obligor, to the address set forth below its signature or such
other address as it may designate, by written notice to Bank as herein
provided or to any other address as may appear in the records of Bank as
Obligor's address.
If to Bank, to Republic National Bank of New York, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Loan Department, or such other address as
it may designate, by written notice to the Obligor as herein provided.
15. Additional Definitions. The following terms have the following meanings
unless otherwise specified herein:
"Accessions," "Account," "Chattel Paper," "Document," "Equipment,"
"Fixtures," "General Intangibles," "Goods," "Instrument" and "Inventory"
have the meanings assigned to those terms by the New York Uniform
Commercial Code, as amended.
"Agreement" means this Continuing General Security Agreement.
"Bank" means Republic National Bank of New York, a National Banking
Association, and its successors and assigns, and any Person acting as
agent or nominee for Republic National Bank of New York and any
corporation the stock of which is owned or controlled directly or
indirectly by, or is under common control with, Republic National Bank of
New York and/or Republic New York Corporation.
"Claims" means each "claim" as that term is defined under Section 101(4)
of the United States Bankruptcy Code, and any amendments thereto (Title
11, United States Code).
"Event of Default means any of the events described in Section 4 of this
Agreement.
"Imported Inventory" means all Inventory of the Obligor of every
description (including, without limitation, raw materials, work in process
and finished Goods) imported from outside of the United States, including
but not limited to Inventory consisting of parts or components produced in
whole or in part in the United States and sent outside of the United
States for assembly, completion or packaging.
8
9
"Lien" means any lien, security interest, pledge, hypothecation,
encumbrance or other claim in or with respect to any property.
"Obligations" means any and all indebtedness, obligations and liabilities
of the Obligor to Bank, and all Claims of Bank against the Obligor, now
existing or hereafter arising, direct or indirect (including
participations or any interest of Bank in indebtedness of the Obligor to
others), acquired outright, conditionally, or as collateral security from
another, absolute or contingent, joint or several, secured or unsecured,
matured or unmatured, monetary or non-monetary, arising out of contract or
tort, liquidated or unliquidated, arising by operation of law or
otherwise, and all extensions, renewals, refundings, replacements and
modifications of any of the foregoing.
"Person" means any natural person, corporation, partnership, trust,
government or other association or legal entity.
"Proceeds" has the meaning assigned to that term by the New York Uniform
Commercial Code, as amended, and also means all "proceeds," "products,"
"offspring," "rents" or "profits" of any property, as such quoted terms
are used in the United States Bankruptcy Code, and any amendments thereto
(Title 11, United States Code).
"Responsible Parties" includes all Obligors and all makers, endorsers,
acceptors, sureties and guarantors of, and all other parties to, the
Obligations or the Collateral.
16. Miscellaneous. This Agreement shall remain in full force and effect and
shall be binding upon the Obligor, its successors and assigns, in
accordance with its terms, notwithstanding any increase, decrease or
change in the partners of the Obligor, if it should be a partnership, or
the merger, consolidation, or reorganization of the Obligor, if it be a
corporation, or any other change concerning the form, structure or
substance of any such entity. If there is more than one Person named as an
Obligor in this Agreement, this Agreement shall be binding upon each of
the Obligors who execute and deliver this Agreement to Bank even if this
Agreement is not executed by any other Person or Persons also named as an
Obligor herein. Bank may assign all or a portion of its rights under this
Agreement and may deliver the Collateral, or any part thereof, to any
assignee and such assignee shall thereupon become vested with all the
powers and rights given to Bank in respect thereof; and Bank shall
thereafter be forever relieved and discharged from any liability or
responsibility in the matter but, with respect to any Collateral not so
delivered or assigned, Bank shall retain all powers and rights given to it
hereby. The execution and delivery hereafter to Bank by the Obligor of a
new security agreement shall not terminate, supersede or cancel this
Agreement, unless expressly provided therein, and this Agreement shall not
terminate, supersede or cancel any security agreement previously delivered
to Bank by the Obligor, and all rights and remedies of Bank hereunder or
under any security agreement hereafter or heretofore executed and
delivered to Bank by the Obligor shall be cumulative and may be exercised
singly or concurrently. This Agreement may not be changed or terminated
orally, but only by a writing executed by the Obligor and a duly
authorized officer of Bank. Unless Bank, in its discretion, otherwise
agrees, the security interests granted in this Agreement shall not
terminate until all of the Obligations have been indefeasibly paid in full
and all commitments of Bank to extend credit which, once extended, would
give rise to Obligations have expired or been terminated. No delay on the
part of Bank in exercising any of its options, powers or rights, or
partial or single exercise thereof, shall constitute a waiver thereof. No
modification or waiver of this Agreement or any provision hereof or of any
other agreement or instrument made or issued in connection herewith or
contemplated hereby, nor consent to any departure by the Obligor
therefrom, shall in any event be effective, irrespective of any course of
dealing between the parties, unless the same shall be in a writing
executed by a duly authorized officer of Bank, and then such waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which given. No notice to or demand on the Obligor in
any case shall thereby entitle the Obligor to any other or further notice
or demand in the same, similar or other circumstances. The remedies herein
provided are cumulative and not exclusive of any other remedies provided
at equity or by law and all such remedies may be exercised singly or
concurrently. If any one or more of the provisions contained in this
Agreement or any document executed in connection herewith shall be
invalid, illegal or unenforceable in any respect under any applicable law,
the validity, legality and enforceability of the remaining provisions
contained herein shall not (to the full extent permitted by law) in any
way be affected or impaired. The descriptive headings used in this
Agreement are for convenience only and shall not be deemed to affect the
meaning or construction of any provision hereof. The word "including"
shall be deemed to be followed by the words "without limitation." The
Obligor waives any and all notice of the acceptance of this Agreement by
Bank, or of the creation, accrual or maturity (whether by declaration or
otherwise) of any and all Obligations, or of any renewals or extensions
thereof from time to time, or of Bank's reliance on this Agreement.
9
10
17. Governing Law; Consent to Jurisdiction; Service of Process. This Agreement
shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed wholly
within that state. The Obligor hereby consents to the jurisdiction of the
courts of the State of New York and the courts of the United States of
America for the Southern District of New York and consents that any action
or proceeding hereunder may be brought in such courts, and waives any
objection that it may now or hereafter have to the venue of any such
action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the
same; and authorizes the service of process on the Obligor by registered
or certified mail sent to any address authorized in Section 14 as an
address for the sending of notices.
18. RIGHT OF BANK TO ARBITRATE DISPUTES.
(a) THE OBLIGOR AGREES THAT ANY ACTION, DISPUTE, PROCEEDING, CLAIM OR
CONTROVERSY BETWEEN OR AMONG THE PARTIES WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE ("DISPUTE" OR "DISPUTES") SHALL, AT
BANK'S ELECTION, WHICH ELECTION MAY BE MADE AT ANY TIME PRIOR TO THE
COMMENCEMENT OF A JUDICIAL PROCEEDING BY BANK, OR IN THE EVENT OF A
JUDICIAL PROCEEDING INSTITUTED BY THE OBLIGOR AT ANY TIME PRIOR TO
THE LAST DAY TO ANSWER AND/OR RESPOND TO A SUMMONS AND/OR COMPLAINT
MADE BY THE OBLIGOR, BE RESOLVED BY ARBITRATION IN NEW YORK, NEW
YORK IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 18 AND SHALL,
AT THE ELECTION OF BANK, INCLUDE ALL DISPUTES ARISING OUT OF OR IN
CONNECTION WITH (I) THIS AGREEMENT OR ANY RELATED AGREEMENTS OR
INSTRUMENTS, (II) ALL PAST, PRESENT AND FUTURE AGREEMENTS INVOLVING
THE PARTIES, (III) ANY TRANSACTION CONTEMPLATED HEREBY AND ALL PAST,
PRESENT AND FUTURE TRANSACTIONS INVOLVING THE PARTIES AND (IV) ANY
ASPECT OF THE PAST, PRESENT OR FUTURE RELATIONSHIP OF THE PARTIES.
Bank may elect to require arbitration of any Dispute with the
Obligor without thereby being required to arbitrate all Disputes
between Bank and the Obligor. Any such Dispute shall be resolved by
binding arbitration in accordance with Article 75 of the New York
Civil Practice Law and Rules and the Commercial Arbitration Rules of
the American Arbitration Association ("AAA"). In the event of any
inconsistency between such Rules and these arbitration provisions,
these provisions shall supersede such Rules. All statutes of
limitations which would otherwise be applicable shall apply to any
arbitration proceeding under this subsection 18(a). In any
arbitration proceeding subject to these provisions, the arbitration
panel (the "arbitrator") is specifically empowered to decide (by
documents only, or with a hearing, at the arbitrator's sole
discretion) pre-hearing motions which are substantially similar to
pre-hearing motions to dismiss and motions for summary adjudication.
In any such arbitration proceeding, the arbitrator shall not have
the power or authority to award punitive damages to any party.
Judgment upon the award rendered may be entered in any court having
jurisdiction. Whenever an arbitration is required, the parties shall
select an arbitrator in the manner provided in subsection 18(d).
(b) No provision of, nor the exercise of any rights under, subsection
18(a) shall limit the right of any party (i) to foreclose against
any real or personal property collateral through judicial
foreclosure, by the exercise of a power of sale under a deed of
trust, mortgage or other security agreement or instrument, pursuant
to applicable provisions of the Uniform Commercial Code, or
otherwise pursuant to applicable law, (ii) to exercise self help
remedies including but not limited to setoff and repossession, or
(iii) to request and obtain from a court having jurisdiction before,
during or after the pendency or any arbitration, provisional or
ancillary remedies and relief including but not limited to
injunctive or mandatory relief or the appointment of a receiver. The
institution and maintenance of an action or judicial proceeding for,
or pursuit of, provisional or ancillary remedies or exercise of self
help remedies shall not constitute a waiver of the right of Bank,
even if Bank is the plaintiff, to submit the Dispute to arbitration
if Bank would otherwise have such right.
(c) Bank may require arbitration of any Dispute(s) concerning the
lawfulness, unconscionableness, propriety, or reasonableness of any
exercise by Bank of its right to take or dispose of any Collateral
or its exercise of any other right in connection with Collateral
including, without limitation, judicial foreclosure, exercising a
power of sale under a deed of trust or mortgage, obtaining or
executing a writ of attachment, taking or disposing of property with
or without
10
11
judicial process pursuant to Article 9 of the Uniform Commercial
Code or otherwise as permitted by applicable law, notwithstanding
any such exercise by Bank.
(d) Whenever an arbitration is required under subsection 18(a), the
arbitrator shall be selected, except as otherwise herein provided,
in accordance with the Commercial Arbitration Rules of the AAA. A
single arbitrator shall decide any claim of $100,000 or less and he
or she shall be an attorney with at least five years' experience.
Where the claim of any party exceeds $100,000, the Dispute shall be
decided by a majority vote of three arbitrators, at least two or
whom shall be attorneys (at least one of whom shall have not less
than five years' experience representing commercial banks).
(e) In the event of any Dispute governed by this Section 18, each of the
parties shall, subject to the award of the arbitrator, pay an equal
share of the arbitrator's fees. The arbitrator shall have the power
to award recovery of all costs and fees (including attorneys' fees,
administrative fees, arbitrators' fees, and court costs) to the
prevailing party.
19. WAIVER OF TRIAL BY JURY. EACH OF BANK AND THE OBLIGOR HEREBY WAIVES TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR AGAINST IT
ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS AGREEMENT OR THE OBLIGATIONS.
20. WAIVER OF CERTAIN OTHER RIGHTS. THE OBLIGOR HEREBY WAIVES THE RIGHT TO
INTERPOSE ANY DEFENSE BASED UPON ANY CLAIMS OF LACHES OR SET-OFF OR
COUNTERCLAIM OF ANY NATURE OR DESCRIPTION, ANY OBJECTION BASED ON FORUM
NON CONVENIENS OR VENUE, AND ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR
SPECIAL DAMAGES.
IN WITNESS WHEREOF, the Obligor(s) has/have executed this Continuing
General Security Agreement.
Chief Executive Office: ▇▇▇▇▇▇▇▇▇▇ Associates, L.P.
Name of the Obligor, if an Entity
By: ▇▇▇▇▇▇▇▇▇▇ Partners, L.P., General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ------------------------------------------
Title: ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇, Managing Partner
-------------------------------- ------------------------------------------
Address of the Obligor: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
GENERAL PARTNER
▇▇▇▇▇▇▇▇▇▇ PARTNERS L.P.
GENERAL PARTNER
▇▇▇▇▇▇▇▇▇▇ ASSOCIATES L.P.
------------------------------------------
Signature of Individual Obligor
-------------------------------- ------------------------------------------
Print Name
--------------------------------
Address of Additional Obligor:
------------------------------------------
Signature of Additional Obligor
-------------------------------- ------------------------------------------
Print Name
--------------------------------
12
[Individual Acknowledgment(s)]
STATE OF NEW YORK
COUNTY OF ______________
On this ______ day of _______________, 19___, before me personally
appeared _______________________________ and __________________________, to me
known, and known to me to be the individual(s) described in and who executed the
foregoing instrument and (t)(s) he(y) duly acknowledged to me that (t)(s)he(y)
executed the same.
-------------------------------
Notary Public
[Partnership Acknowledgment]
STATE OF NEW YORK
COUNTY OF _____________
On this ______ day of _______________, 19___, before me personally
appeared _______________________________ and __________________________ to me
known and known to me to be the members of __________________________, the
partnership mentioned and described in and which executed the foregoing
instrument, and the said members duly acknowledged to me that they executed said
instrument for and on behalf of and with the authority of the said partnership
for the uses and purposes therein mentioned.
-------------------------------
Notary Public
[Corporate Acknowledgment]
STATE OF NEW YORK
COUNTY OF _____________
On this ______ day of _______________, 19___, before me personally
came _______________________________ and __________________________ to me known
who, being duly sworn, deposes and says that (t)(s)he(y) is/are the
__________________________ and __________________________, the corporation
described in and which executed the above instrument; that (t)(s)he(y) know(s)
the seal of the corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation and (t)(s)he(y) signed his(her)(their) name(s) by like order.
-------------------------------
Notary Public
12
13
SECRETARY'S CERTIFICATE
I, __________________________________, do hereby certify as follows:
1. I am duly elected, qualified and acting Secretary of
___________________________________, a _____________________________
corporation (the "Corporation"), and as such Secretary have the care and
custody of the corporate books and records, have personal knowledge of the
matters set forth herein, and have authority to make this Certificate for
and on behalf of the Corporation.
2. At a special meeting of the directors of the Corporation, called in
accordance with the provisions of the By-Laws of the Corporation and held
on ___________, 19__, or pursuant to the unanimous written consent of the
directors of the Corporation dated ____________, 19__, as authorized by
the By-Lass of the Corporation, the following resolutions were adopted by
the unanimous vote or consent of all the directors.
WHEREAS, the Corporation desires to Republic National Bank of New York
(hereinafter referred to as the "Bank") hereafter to extend credit or
other financial accommodations to the Corporation upon such terms and
conditions as may be required by the Bank,
IT IS, THEREFORE, RESOLVED, that the Corporation shall grant to the Bank a
security interest in property of the Corporation designated by any officer
of the Corporation to secure any and all obligations of the Corporation to
the Bank, whether now existing or hereafter incurred; and
FURTHER RESOLVED, that any officer of the Corporation be, and each of them
hereby is, authorized and directed to execute, and the Secretary or any
Assistant Secretary of the Corporation is hereby authorized and directed
to attest to and to affix the seal of the Corporation to, any security
agreements and other instruments or documents related thereto, in the form
required by the Bank; and
FURTHER RESOLVED, that the Corporation shall agree to submit to
arbitration and to waive the right of trial by jury with respect to any
dispute arising under such security agreement or any related document.
3. I further certify that the foregoing resolutions remain in full force and
effect and have not been rescinded or modified in any manner whatsoever
and neither their adoption nor their implementation violate the
Corporation's certificate of incorporation or by-laws or breach or
constitute a default under any agreement or indenture to which the
Corporation is a party or by which it is bound.
IN WITNESS WHEREOF, I have set my hand and the seal of
________________________________, at ___________________________ this
______________________ day of _____________, 19____.
[SEAL]
------------------------
Secretary
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14
Amendment to the Continuing
General Security Agreement
Rider to Continuing General Security Agreement (dated December 5, 1996
from Wolfenson Associates L.P., Obligor, in favor of the Bank (as defined
therein)).
1. Section 4 of the Continuing General Security Agreement is hereby amended
as follows:
a. Clause (b) is amended to insert the words "material to the Bank's
credit decision" after the words "representation or warranty" and
prior to the words "of the Obligor".
b. Clause (c) is amended to insert the words "material to the Bank's
credit decision" after the words "any covenant" and prior to the
words "in this Agreement".
c. The word "or" is inserted prior to clause (d) and deleted prior to
clause (e).
d. Clause (e) is deleted in its entirety.
e. The words "or guarantor of" are deleted from the second sentence
thereof, and the words "▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇" are inserted in their
place. The words "(other than ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇)" are inserted after the words "or any other party"
and prior to the words "to, the Obligations".
f. Clause (ff) is deleted in its entirety.
g. Clause (jj) is amended to insert at the end thereof the words "in
excess of $100,000, provided that this clause (jj) shall not apply
with respect to taxes or tax deficiencies being contested in good
faith."
h. Clause (ll) is amended to insert at the end thereof the words "not
paid within 30 days thereof or contested in good faith".
i. Clause (mm) is amended to insert at the end thereof the words "in
excess of $100,000, provided that this clause (mm) shall not apply
with respect to judgments, orders and injunctions being contested in
good faith".
j. Clause (nn) is amended to insert at the end thereof the words "that
is not stayed pursuant to the filing of an appeal or other
proceeding in good faith".
15
2. Section 15 is amended to delete from the definition of Responsible Parties
the words "guarantors of" and to insert in their place the words "▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇", and to insert after the words "all other parties" and prior
to the words "to, the Obligations" the words "(other than ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇)".
IN WITNESS WHEREOF, this Rider is signed as of August 19, 1997.
▇▇▇▇▇▇▇▇▇▇ ASSOCIATES II L.P.
By: ▇▇▇▇▇▇▇▇▇▇ Partners II, LLC,
its general partner
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Member
REPUBLIC NATIONAL BANK
OF NEW YORK
/s/ ▇▇▇▇ ▇. Pan
-------------------------------
By: ▇▇▇▇ ▇. Pan
Title: First Vice President
2
16
AMENDED MARGIN AGREEMENT
Rider to Continuing General Security Agreement (dated December 5, 1996
from ▇▇▇▇▇▇▇▇▇▇ Associates L.P., Obligor, in favor of the Bank (as defined
therein)).
Reference is made to the heading "Specific Property" referred to in this
Continuing General Security Agreement and to the securities ("Marketable
Securities") of the types described in Exhibit A, attached hereto, and to
any renewals, substitutions or replacements and all proceeds thereof, from
time to time held in Account No. 7771 or any successor account ("Account")
referred to under such heading. Obligor acknowledges and agrees that the
value of the Marketable Securities shall at all times have the Collateral
Value, as defined below, at least equal to the Obligations. If at any time
the Collateral Value is less than the Obligations (a "Margin Shortfall"),
the Bank may give notice to the Obligor in accordance with Section 14
hereof, at the address set forth below, that a Margin Shortfall exists and
the amount of such Shortfall (the "Margin Shortfall Notice"). If within 15
business days of the date of such Margin Shortfall Notice, the Obligor has
neither (a) deposited with the Bank in the Account an amount equal to the
amount set forth in the Margin Shortfall Notice of cash and/or additional
Marketable Securities satisfactory to the Bank and approved by the Bank in
writing or (b) prepaid an amount of the Obligations at least equal to the
amount set forth in the Margin Shortfall Notice, then the Bank may, in
its sole discretion, (x) sell such amount of Marketable Securities and
apply the proceeds of such sale to the Obligations so as to cause the
Obligations to cease to be less than the Collateral Value or (y) declare
the Obligations immediately due and payable notwithstanding the absence of
any default by the Borrower under the Obligations whereupon an Event of
Default shall be deemed to have occurred hereunder and the Bank may sell
the Marketable Securities and otherwise exercise its remedies hereunder or
as are otherwise available to it. As used herein, the term "Collateral
Value" shall mean the sum of any cash held in such Account and the sum of
the respective products obtained by multiplying the fair market value, as
determined by the Bank, of each type of Marketable Security held in such
Account, by applicable percentage for such type of security set forth in
Exhibit A hereto.
This Margin Agreement amends and restates in the entirety the Margin
Agreement from ▇▇▇▇▇▇▇▇▇▇ Associates L.P. in favor of the Bank originally
attached to the Continuing General Security Agreement.
Dated: As of August 19, 1997 ▇▇▇▇▇▇▇▇▇▇ ASSOCIATES II L.P.
By: ▇▇▇▇▇▇▇▇▇▇ Partners II, LLC,
its General Partner
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Member
Republic National Bank of New York
Addresses for Notices
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ Pan Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------- c/▇ ▇▇▇▇▇▇▇ Hole Mgt. Co. Inc.
