EXHIBIT 10.23
SECURITY AGREEMENT
XXXXXX INDUSTRIES, INC., a Florida corporation (the "Borrower"), of 0000
Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, for value received, hereby
grants to XXXXXXX BANK, N.A., with an office at 000 Xxxxxxx Xxxxxxxxx, P. O. Box
678267, Orlando, Florida 32867-8267(the "Secured Party"), a continuing security
interest in the following property:
ALL INVENTORY, CHATTEL PAPER, ACCOUNTS RECEIVABLE, EQUIPMENT AND
GENERAL INTANGIBLES, WHETHER ANY OF THE FOREGOING IS OWNED NOW OR
HEREAFTER ACQUIRED; ALL ACCESSIONS, ADDITIONS, REPLACEMENTS AND
SUBSTITUTIONS RELATING TO ANY OF THE FOREGOING; ALL RECORDS OF ANY
KIND RELATING TO ANY OF THE FOREGOING; AND ALL PROCEEDS RELATING TO
ANY OF THE FOREGOING (INCLUDING INSURANCE, GENERAL INTANGIBLES AND
OTHER ACCOUNT PROCEEDS).
together with all products of the collateral and all additions and accessions
to, replacements of, insurance or condemnation proceeds of, and documents
covering the collateral, all property received wholly or partly in trade or
exchange for the collateral, and all rents, revenues, issues, profits and
proceeds arising from the sale, lease, license, encumbrance, collection, or any
other temporary or permanent disposition of, the collateral or any interest
therein, whether now owned or existing or hereafter acquired or arising (all of
which is hereinafter called "Collateral"), to secure the payment of that certain
indebtedness evidenced by a promissory note or notes executed by Borrower in the
amount of ONE MILLION ($1,000,000.00) DOLLARS, of even date herewith, and any
and all extensions or renewals thereof, and all obligations of every description
whether now existing or hereafter arising or acquired by Secured Party by
purchase, assignment or otherwise, and whether direct or indirect, primary or as
guarantor or surety, absolute or contingent, liquidated or unliquidated, matured
or unmatured, whether or not secured by additional collateral, and including
without limitation obligations to perform or forbear from performing acts, all
amounts represented by letters of credit now or hereafter issued by Secured
Party for the benefit of or at the request of Borrower, and all expenses and
attorneys' fees incurred by Secured Party in the preparation, execution,
perfection, administration or enforcement of this Agreement, the security
interest created hereby, or any other documents relating to any obligation (all
hereinafter called the "Obligations").
Notwithstanding the foregoing, Secured Party waives any rights to the
Collateral or to any deposit account or any other property of Borrower with
Secured Party as security for any indebtedness of an individual Borrower to
Secured Party to which the Truth-in-Lending Act and Regulation Z promulgated
thereunder apply.
To the extent not defined herein, unless the context otherwise requires,
all other terms contained in this Agreement shall have the meanings attributed
to them by Article 9 of the Uniform Commercial Code in force in the State of
Florida as of the date hereof, to the extent the same are used or defined
therein.
A. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Secured Party, and such representations and warranties shall be continuing
representations and warranties so long as any Obligations shall remain
outstanding, as follows:
1. If a corporation, Borrower has been duly incorporated and
organized and is existing as a corporation in good standing under the laws
of its jurisdiction of incorporation and is duly qualified and in good
standing as a foregoing corporation in those jurisdictions where the
conduct of its business or the ownership of its properties requires
qualification; and Borrower has the power and authority to own the
Collateral, to enter into and perform this Agreement and any other document
or instrument delivered in connection herewith and to incur the
Obligations.
2. Borrower utilizes no trade names in the conduct of its business
except as set forth herein, has not changed its name, been the surviving
entity in a merger, acquired any business, or (if Accounts or Accounts
Receivable are included as Collateral) changed the location of its chief
place of business or chief executive office or the location of its records
with respect to such Accounts or Accounts Receivable or the location of any
returns of Inventory, or (if Inventory is included as Collateral) the
location of any of the Inventory, or (if Equipment is included as
Collateral) the location of the Equipment, except as set forth herein.
3. The execution and performance of this Agreement and any other
document or instrument delivered in connection herewith will not result in
the creation or imposition of any lien or encumbrance upon any of the
Collateral (immediately, with the passage of time, or with the giving of
notice and the passage of time) except the lien created hereby.
4. This Agreement and any document or instrument delivered in
connection herewith and the transactions contemplated hereby or thereby
have been duly authorized and/or executed and delivered, as appropriate;
and this
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Agreement and such other documents and instruments constitute valid
and legally binding obligations of Borrower and are enforceable
against Borrower in accordance with their respective terms.
5. Borrower is the owner of the Collateral free and clear of all
security interests, encumbrances or liens, except liens which arise by
operation of law with respect to obligations of Borrower which are not yet
due and payable and except as may be specifically set forth herein, and
Borrower will defend the Collateral against all claims and demands of all
persons at any time claiming an interest therein.
6. Borrower has filed all federal, state and local tax returns and
other reports it is required to file and has paid or made adequate
provision for payment of all such taxes, assessments and other governmental
charges.
7. No representation, warranty or statement by Borrower contained
herein or in any certificate or other document furnished or to be furnished
by Borrower pursuant hereto contains or at the time of delivery shall
contain any untrue statement of material fact, or omits, or shall omit at
the time of delivery, to state a material fact necessary to make it not
misleading.
B. SPECIFIC REPRESENTATIONS, WARRANTIES AND COVENANTS WITH RESPECT TO
COLLATERAL. With respect to the Collateral, Borrower hereby represents and
warrants and covenants with Secured Party as follows:
1. If Inventory is a part of the Collateral:
(a) All Inventory is in possession of Borrower at Borrower's
address set forth above and all records of Borrower pertaining thereto
are kept at Borrower's address except as set forth herein, and
Borrower shall notify Secured Party in writing no later than thirty
(30) days prior to any change of any location where the Inventory is
or may be kept;
(b) Borrower shall not sell, lease or otherwise transfer any
interest in the Inventory except that Borrower may, until an Event of
Default occurs, hold, process, sell, use or consume Inventory in the
ordinary course of Borrower's business, excluding, however, any sale
or transfer made in partial or total satisfaction of a debt;
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(c) Borrower shall keep current stock, cost and sales records of
the Inventory, accurately itemizing and describing the types or
quantities of Inventory, and the cost and selling price thereof and
all books, records and documents relating to the Inventory are and
will be genuine, complete and correct;
(d) None of the Inventory is, or at any time or times hereafter
will be, stored with a bailee, without the prior written consent of
Secured Party;
(e) Borrower shall, at Secured Party's request, deliver to
Secured Party any and all evidence of ownership of, certificates of
title to, or other documents evidencing any interest in, any and all
of the Inventory; and
(f) Borrower has not purchased any of the Inventory in a bulk
transfer or in a transaction which was outside the ordinary course of
business of the Seller.
2. If Equipment is a part of the Collateral:
(a) The Equipment is in the possession of Borrower at Borrower's
address set forth above or at the location(s) set forth herein and
that said location(s) if not owned by Borrower, are leased by Borrower
as set forth herein; if Equipment is or shall be affixed to any real
estate, including any buildings owned or leased by Borrower or used by
Borrower in the operation of its business, Borrower shall provide
Secured Party with disclaimers and waivers necessary to make the
security interest in the Equipment valid against Borrower and other
persons holding an interest in such real estate;
(b) Borrower shall keep and maintain all Equipment in good
operating condition and repair, make all necessary repairs thereto and
replacement of parts thereof so that the value and operating
efficiency thereof shall at all times be maintained and preserved; and
Borrower shall keep complete and accurate books and records with
respect to Equipment, including maintenance records;
(c) Borrower shall deliver to Secured Party any and all evidence
of ownership of, and certificates of title to, any and all of the
Equipment;
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(d) Except as set forth herein, Borrower shall not, without the
prior written consent of Secured Party, sell, lease or in any other
manner dispose of any Equipment. Borrower may from time to time
substitute Equipment provided that the value, marketability and
operating integrity of the Collateral after such action is not
impaired. Any such substituted Equipment shall become a part of the
Collateral, and the Equipment for which substitution has been made
shall become the property of Borrower free and clear of any claims of
Secured Party.
(e) Borrower shall notify Secured Party in writing no later than
thirty (30) days prior to any change of any location where the
Equipment is or may be kept.
3. If Accounts Receivable (Receivables) are part of the Collateral:
(a) The address of the chief executive office and chief place of
business of Borrower is set forth above and Borrower has no other
places of business except as set forth herein. All records pertaining
to the Receivables (including computer records) and all returns of
Inventory are kept at Borrower's address; Borrower will notify Secured
Party in writing, no later than thirty (30) days prior to any change
in address of the chief executive office or chief place of business of
Borrower or of any change of the location where records pertaining to
Receivables or returns of Inventory are kept.
(b) All books, records and documents relating to any of the
Receivables (including computer records) are and will be genuine and
in all respects what they purport to be; and the amount of each
Receivable shown on the books and records of Borrower is and will be
the correct amount actually owing or to be owing at maturity of such
Receivables.
(c) Until Secured Party directs otherwise, Borrower shall
collect the Receivables, subject to the direction and control of
Secured Party at all times. Any proceeds of Receivables collected by
Borrower shall not be commingled with other funds of Borrower and
shall, upon the request of Secured Party, be immediately delivered to
Secured Party in the form received, except for necessary endorsements
to permit
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collection; Secured Party may in its sole discretion, allow Borrower
to use such funds to such extent and for such periods, if any, as
Secured Party elects;
(d) Borrower shall notify Secured Party if any Receivables arise
out of contracts with the United States or any department, agency or
instrumentality thereof, and Borrower shall execute any instruments
and take any steps to perfect the assignment of the rights of the
Borrower to Secured Party as required under the Federal Assignment of
Claims Act or any similar act or regulation;
(e) Borrower shall provide Secured Party, at its request, from
time to time with: confirmatory assignment schedules; copies of all
invoices relating to Receivables; evidence of shipment or delivery of
Inventory; and, such further information and/or schedules as Secured
Party may reasonably require, all in a form satisfactory to Secured
Party;
(f) Borrower shall not sell any accounts or other rights to
monies due, except for endorsing and depositing checks for collection;
and
(g) Borrower shall not cancel any claim or debt it owns except
for adequate consideration and in the ordinary course of business.
4. The security interests granted to Secured Party pursuant hereto
and to any of the other loan documents are first priority security interest
in and to the Collateral described herein and therein, assuming delivery of
any property as to which possession is the only method of perfecting a
security interest and the filing or recording of financing statements,
chattel mortgages, trademark mortgages, patent mortgages and certificates
of title with respect thereof. Borrower has delivered all agreements,
letters of credit, promissory notes, certificates of deposit, chattel
paper, or anything else the physical possession of which is necessary in
order for Secured Party to perfect or preserve the priority of its security
interest, and shall immediately so deliver all of such items hereafter
arising or acquired by Borrower.
5. If the Collateral declines substantially in value Borrower shall
grant a security interest to Secured Party in additional collateral
satisfactory to Secured Party with a
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value at least equal to the decline in value of the existing collateral.
6. If any collateral is stored in a warehouse which has issued a
negotiable warehouse receipt therefor, Borrower shall immediately deliver
such warehouse receipt to Secured Party.
C. GENERAL COVENANTS. Borrower covenants and agrees that so long as any
Obligations remain outstanding:
1. Borrower shall not mortgage, pledge, grant or permit to exist a
security interest in, or lien or encumbrance upon any of the Collateral
except in favor of Secured Party.
2. Borrower shall, upon the request of Secured Party, furnish
Secured Party:
(a) Promptly and in form satisfactory to Secured Party, any
information as Secured Party may reasonably request from time to time.
3. Borrower shall maintain casualty insurance coverage on the
Collateral in such amounts and of such types as may be requested by Secured
Party, and in any event, as are ordinarily carried by similar businesses;
and, in the case of all policies insuring property in which Secured Party
shall have a security interest of any kind whatsoever, all such insurance
policies shall provide that the proceeds thereof shall be payable to
Borrower and Secured Party, as their respective interests may appear. All
said policies or certificates thereof, including all endorsements thereof
and those required hereunder, shall be deposited with Secured Party; and
such policies shall contain provisions that no such insurance may be
canceled or decreased without ten (10) days prior written notice to Secured
Party; and in the event of acquisition of additional insurable Collateral,
Borrower shall cause such insurance coverage to be increased or amended in
such manner and to such extent as prudent business judgment would dictate.
If Borrower shall at any time or times hereafter fail to obtain and/or
maintain any of the policies of insurance required herein, or fail to pay
any premium relating to any such policies, Secured Party may, but shall not
be obligated to, obtain and/or cause to be maintained insurance coverage
with respect to the Collateral, including at Secured Party's option, the
coverage provided by all or any of the policies of Borrower and pay all or
any part of the premium therefor, without
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waiving any Event of Default by Borrower, and any sums so disbursed by
Secured Party shall be additional Obligations of Borrower to Secured
Party payable on demand. Secured Party shall have the right to settle
and compromise any and all claims under any of the policies required to
be maintained by Borrower hereunder and Borrower hereby appoints Secured
Party as its attorney-in-fact, with power to demand, receive and receipt
for all monies payable thereunder, to execute in the name of Borrower or
Secured Party or both any proof of loss, notice, draft or other
instruments in connection with such policies or any loss thereunder and
generally to do and perform any and all acts as Borrower, but for this
appointment, might or could perform.
4. Borrower shall permit Secured Party, through its authorized
attorneys, accountants and representatives, to inspect and examine the
Collateral and the books, accounts, records, ledgers and assets of
every kind and description of Borrower with respect thereto at all
reasonable times. Secured Party (by any of its officers, employees
and/or agents) shall have the right to inspect, audit and make extracts
from all of the Borrower's records, files and books of account, and to
enter and inspect Borrower's premises. Borrower shall deliver any
document or instrument necessary for Secured Party to obtain records
from any service bureau maintaining records for Borrower and shall
maintain duplicate records on media, including, without limitation,
computer tapes and discs, owned entirely by Borrower. All reasonable
out-of-pocket costs, fees and expenses incurred by Secured Party (other
than salaries paid to Secured Party's employees), or for which Secured
Party has become obligated, in connection with such inspection and/or
verification shall be payable by Borrower to Secured Party.
5. Borrower shall promptly notify Secured Party of any condition
or event which constitutes, or would constitute with the passage of time
or giving of notice or both, an Event of Default under this Agreement,
and promptly inform Secured Party of any events or change in the financial
condition of Borrower occurring since the date of the last financial
statement of Borrower delivered to Secured Party which individually or
cumulatively when viewed in light of prior financial statements, may result
in a material adverse change in the financial condition of Borrower.
6. Borrower shall, if a corporation, maintain in good standing its
corporate existence in its jurisdiction of
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incorporation and its status as a foreign corporation qualified to do
business in those jurisdictions where Borrower is required to be
qualified; if Borrower is presently not incorporated, Borrower will not
incorporate or transfer any of its assets to a corporation without the
prior written consent of Secured Party.
7. If Borrower shall now or hereafter maintain an employee benefit
plan covered by Section 4021(a) of the Employee Retirement Income Security
Act of 1974 (hereinafter referred to as "ERISA") relating to plan
termination insurance, it shall promptly:
(a) Notify Secured Party of filing of notice with the Pension
Benefit Guaranty Corporation ("PBGC") pursuant to Section 4041 of
ERISA that the plan is to be terminated; and
(b) Notify Secured Party of the institution of proceedings by
the PBGC under Section 4042 of ERISA.
8. Borrower shall pay or deposit promptly when due all sales, use,
excise, personal property, income, withholding, corporate, franchise and
other taxes, assessments and governmental charges upon or relating to its
ownership or use of any of the Collateral and submit to Secured Party proof
satisfactory to Secured Party that such payments and/or deposits have been
made.
9. Borrower shall, at any time and from time to time upon the
request of Secured Party, execute and deliver to Secured Party, in form and
substance satisfactory to Secured Party, such documents as Secured Party
shall deem necessary or desirable to perfect or maintain perfected the
security interest of Secured Party in the Collateral or which may be
necessary to comply with the provisions of the law of the State of Florida
or the law of any other jurisdiction in which Borrower may then be
conducting business or in which any of the Collateral may be located.
10. Borrower shall maintain and preserve all patents, copyrights,
trademarks, service marks, trade names and the like, and shall diligently
pursue all applications for any of the aforesaid.
11. Borrower shall not occupy any premises other than those currently
occupied, enter into any leases for premises other than those currently in
existence, or enter into any warehouse storage agreements other than those
in existence,
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without in each case first obtaining and delivering to Secured Party a
waiver of lien by such landlord or warehouseman in form and substance
satisfactory to Borrower.
12. Borrower is not a party to any contracts to supply items to the
United States of America or any department, agency, subdivision or
instrumentality thereof. Borrower shall not enter into any such contracts
except upon prior written notice to Secured Party specifically stating
whether such contract provides for progress or similar pre-delivery
payments to Borrower, and Borrower shall take all action necessary to
assign to Secured Party all rights to such progress payments.
D. EVENTS OF DEFAULT AND ACCELERATION.
1. The occurrence of any one or more of the following events shall
constitute an Event of Default hereunder:
(a) Default in the payment of any principal, interest or other
charges in respect to any of the Obligations as and when due;
(b) Default in the observance or performance of any covenant or
agreement of any Borrower herein set forth or set forth in any
agreement, note or instrument heretofore, now or hereafter executed by
any Borrower in favor of Secured Party;
(c) Any representation, warranty, certificate, schedule or other
information made or furnished by Borrower to Secured Party herein or
pursuant hereto which is or shall be untrue or materially misleading;
(d) Loss, theft, damage or destruction of any material portion
of the Collateral for which there is either no insurance coverage or
for which in the opinion of Secured Party there is insufficient
insurance coverage; or the making of any levy, seizure or attachment
upon the Collateral;
(e) Insolvency of any Borrower; or the appointment of a
creditor's committee for the business of any Borrower; or any
assignment by any Borrower for the benefit of creditors; or the filing
by any Borrower of a petition in bankruptcy or for reorganization or
to effect a plan of arrangement with creditors; or an application by
any Borrower for or permitting the appointment of a receiver or
trustee for any or all of
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the property or assets of Borrower or if any such receiver or
trustee shall have been appointed for any or all property or assets
of any Borrower; or the commencement of any of the above actions or
proceedings whatsoever by or against any Borrower or any guarantor
or any other party liable for any of the Obligations;
(f) The filing or commencement of any proceeding by or against
any Borrower or any guarantor of any of the Obligations for
dissolution or liquidation; or any Borrower or any guarantor dies (if
an individual) or voluntarily or involuntarily terminates or dissolves
or is terminated or dissolved;
(g) The occurrence or existence of any situation which leads
Secured Party to reasonably believe that Borrower may not, or may be
unable to, pay in the normal course any of the Obligations; or
(h) The occurrence of any event which might, in Secured Party's
opinion, have a material adverse effect on the Collateral or on
Borrower's financial or business conditions, operations or prospects.
2. If any Event of Default shall occur, then or at any time
thereafter, while such Event of Default shall continue, Secured Party may
declare all Obligations to be due and payable, without notice, protest,
presentment or demand, all of which are hereby expressly waived by
Borrower.
E. RIGHTS AND REMEDIES. Secured Party shall have, by way of example and
not of limitation, the rights and remedies set forth herein and provided by the
Uniform Commercial Code in effect in the State of Florida at all times after the
occurrence of an Event of Default:
1. Secured Party and any officer or agent of Secured Party is hereby
constituted and appointed as true and lawful attorney-in-fact of Borrower
with power:
(a) If Receivables are part of the Collateral, to notify or
require Borrower to notify any and all account debtors or parties
against which Borrower has a claim that the Receivables have been
assigned to Secured Party and/or that Secured Party has a security
interest therein and that all payments should be made to Secured
Party;
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(b) To endorse the name of Borrower upon any instrument of
payment (including payments made under any policy of insurance) that
may come into possession of Security Party in full or part payment of
any amount owing to Secured Party;
(c) To sign and endorse the name of Borrower upon any invoice,
freight or express xxxx, xxxx of lading, storage or warehouse receipt,
drafts against account debtors or other obligors and if Receivables
are a part of Collateral, to sign and endorse the name of Borrower on
any assignments, verifications and notices in connection with
Receivables, and any instrument or document relating thereto or to
rights of Borrower therein;
(d) To notify the post office authorities to change the address
for delivery of mail for Borrower to an address designated by Secured
Party and to receive, open and dispose of all mail addressed to
Borrower;
(e) If Receivables are a part of the Collateral, to send
requests for verification to account debtors or other obligors; and
(f) To sell, assign, xxx for, collect or compromise payment of
all or any part of the Collateral in the name of Borrower or its own
name, or make any other disposition of Collateral, or any part
thereof, which disposition may be for cash, credit or any combination
thereof and Secured Party may purchase all or any part of the
Collateral at public or, if permitted by law, private sale, and in
lieu of actual payment of such purchase price, may set-off the amount
of such price against the Obligations;
granting to Secured Party, as the attorney-in-fact of Borrower, full power
of substitution and full power to do any or all things necessary to be done
in and about the premises as fully and effectually as Borrower might or
could do but for this appointment, and hereby ratifying all that said
attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
Neither Secured Party nor its agents shall be liable for any acts or
omissions or for any error of judgment or mistake of fact or law in its
capacity as such attorney-in-fact. This power of attorney is coupled with
an interest and shall be irrevocable so long as any Obligations shall
remain outstanding.
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2. Secured Party shall have the right to enter and/or remain upon
the premises of Borrower without any obligation to pay rent to Borrower or
others, or any other place or places where any of the Collateral is located
and kept and:
(a) Remove Collateral therefrom to the premises of Secured Party
or any agent of Secured Party, for such time as Secured Party may
desire, in order to maintain, collect, sell and/or liquidate the
Collateral; or
(b) Use such premises, together with materials, supplies, books
and records of Borrower, to maintain possession and/or the condition
of the Collateral, and to prepare the Collateral for selling,
liquidating or collecting. Secured Party may require Borrower to
assemble the Collateral and make it available to Secured Party at a
place to be designated by Secured Party which is reasonably convenient
to both parties.
3. Borrower recognizes that in the event Borrower fails to perform,
observe or discharge any of its obligations or liabilities under this
Agreement, no remedy of law will provide adequate relief to Secured Party,
and Borrower agrees that Secured Party shall be entitled to temporary and
permanent injunctive relief in any such case without the necessity of
proving actual damages.
4. Secured Party shall have the right to set-off, without notice to
Borrower, any and all deposits or other sums at any time or times credited
by or due from Secured Party to Borrower, whether in a special account or
other account or represented by a certificate of deposit (whether or not
matured) which deposits and other sums shall at all times constitute
additional security for the Obligations and may be set-off against all or
any part of the Obligations at any time if Borrower is primary obligor with
respect to such Obligations, or, at or after the maturity of Obligations if
Borrower is secondary obligor.
5. Secured Party shall have, in addition to any other rights and
remedies contained in this Agreement, and any other agreements, guarantees,
notes, instruments and documents heretofore, now or at any time or times
hereafter executed by Borrower and delivered to Secured Party, all of the
rights and remedies of a secured party under the Uniform Commercial Code in
force in the State of Florida, as of the date hereof, all of which rights
and remedies shall be
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cumulative, and nonexclusive, to the extent permitted by law.
6. Any notice required to be given by Secured Party of a sale or
other disposition or other intended action by Secured Party with respect to
any of the Collateral, or otherwise, made in accordance with the terms of
this Agreement at least five (5) days prior to such proposed action, shall
constitute fair and reasonable notice to Borrower of any such action. In
the event that any of the Collateral is used in conjunction with any real
estate, the sale of the Collateral in conjunction with and as one parcel
with any such real estate of Borrower shall be deemed to be a commercially
reasonable manner of sale. The net proceeds realized by Secured Party upon
any such sale or other disposition, after deduction of the expenses of
retaking, holding, preparing for sale, selling or the like and reasonable
attorneys' fees and any other expenses incurred by Secured Party, shall be
applied toward satisfaction of the Obligations hereunder. Secured Party
shall account to Borrower for any surplus realized upon such sale or other
disposition and Borrower shall remain liable for any deficiency. The
commencement of any action, legal or equitable, shall not affect the
security interest of Secured Party in the Collateral until the Obligations
hereunder or any judgment therefor are fully paid. Secured Party may, if
Secured Party deems it reasonable, postpone or adjourn any sale of the
Collateral, or any part thereof, from time to time by an announcement at
the time and place of sale or by announcement at the time and place of such
postponed or adjourned sale, without being required to give a new notice of
sale. Borrower agrees that Secured Party has no obligation to preserve
rights against prior parties to the Collateral.
F. GENERAL PROVISIONS.
1. The failure of Secured Party at any time or times hereafter to
require strict performance by Borrower of any of the provisions,
warranties, terms and conditions contained in this Agreement or in any
other agreement, guaranty, note, instrument or document now or at any time
or times hereafter executed by Borrower and delivered to Secured Party
shall not waive, affect or diminish any right of Secured Party at any time
or times thereafter to demand strict performance thereof. No rights of
Secured Party hereunder shall be deemed to have been waived by any act or
knowledge of Secured Party, its agents, officers or employees, unless such
waiver is contained in an instrument
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in writing signed by an officer of Secured Party and directed to
Borrower specifying such waiver. No waiver by Secured Party of any of
its rights shall operate as a waiver of any other of its rights or any
of its rights on a future occasion.
2. Any written demand or notice required or permitted to be given
hereunder shall be deemed effective when deposited in the United States
mail, and sent by certified mail, return receipt requested, postage
prepaid, addressed to Secured Party's address or to Borrower's address, as
applicable; or to such other address as may be provided by the party to be
notified, on ten (10) days' prior written notice to the other party.
3. This Agreement contains the entire understanding between the
parties hereto with respect to the transactions contemplated herein and
such understanding shall not be modified except in writing signed by or on
behalf of the parties hereto.
4. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable
law; should any portion of this Agreement be declared invalid for any
reason in any jurisdiction, such declaration shall have no effect upon the
remaining portion of this Agreement; furthermore, the entirety of this
Agreement shall continue in full force and effect in all other
jurisdictions and said remaining portions of this Agreement shall continue
in full force and effect in the subject jurisdiction as if this Agreement
had been executed with the invalid portions thereof deleted.
5. In the event Secured Party seeks to take possession of any or all
of the Collateral by court process, Borrower hereby irrevocably waives any
bonds and any surety or security relating thereto required by any statute,
court rule or otherwise as an incident to such possession, and waives any
demand for possession prior to the commencement of any suit or action to
recover with respect thereto.
6. The provisions of this Agreement shall be binding upon and shall
inure to the benefit of the heirs, administrators, successors and assigns
of Secured Party and Borrower, provided, however, Borrower may not assign
any of its rights or delegate any of its obligations hereunder without the
prior written consent of Secured Party.
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7. This Agreement is and shall be deemed to be a contract entered
into and made pursuant to the laws of the State of Florida and shall in all
respects be governed, construed, applied and enforced in accordance with
the laws of said state; in the event that the Secured Party brings any
action hereunder in any court of record of Florida or the federal
government, Borrower consents to and confers personal jurisdiction over
Borrower by such court and agrees that service of process may be made upon
Borrower by mailing a copy of the summons to Borrower at Borrower's
address; and in any action hereunder Borrower waives the right to demand a
trial by jury.
8. This Agreement is the result of the joint efforts and
negotiations of the parties hereto, with each party being represented, or
having the opportunity to be represented, by legal counsel of its own
choice, and no singular party is the author or drafter of the provisions
hereof. Each of the parties assumes joint responsibility for the form and
composition of each and all of the contents of this Agreement and each
party agrees that this Agreement shall be interpreted as though each of the
parties participated equally in the composition of this Agreement and each
and every provision and part hereof. The parties agree that the rule of
judicial interpretation to the effect that any ambiguity or uncertainty
contained in an agreement is to be construed against the party who drafted
the agreement shall not be applied in the event of any disagreement or
dispute arising out of this Agreement.
9. If, prior hereto and/or at any time or times hereafter, Secured
Party shall employ counsel in connection with the execution and
consummation of the transactions contemplated by this Agreement or to
commence, defend or intervene, file a petition, complaint, answer, motion
or other pleadings, or to take any other action in or with respect to any
suit or proceeding (bankruptcy or otherwise) relating to this Agreement,
the Collateral or any other agreement, guaranty, note, instrument or
document heretofore, now, or at any time or times hereafter executed by
Borrower and delivered to Secured Party, or to protect, collect, lease,
sell, take possession of or liquidate any of the Collateral, or to attempt
to enforce or to enforce any security interest in any of the Collateral, or
to enforce any rights of Secured Party hereunder, whether before or after
the occurrence of any Event of Default, or to collect any of the
Obligations, then in any of such event, all of the reasonable attorneys'
fees arising from such services, and any expenses, costs and charges
relating thereto, shall
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be part of the Obligations, payable on demand and secured by the
Collateral.
10. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute but one and the same instrument.
11. Each reference herein to Secured Party shall be deemed to include
its successors and assigns, and each reference to Borrower and any pronouns
referring thereto as used herein shall be construed in the masculine,
feminine, neuter, singular or plural, as the context may require, and shall
be deemed to include the legal representatives, successors and assigns of
Borrower, all of whom shall be bound by the provisions hereof. The term
"Borrower" as used herein shall, if this Agreement is signed by more than
one Borrower, mean, unless this Agreement otherwise provides or unless the
context otherwise requires, the "Borrower and each of them" and each and
every representation, promise, agreement and undertaking shall be joint and
several, except that the granting of the security interest, right of
set-off and lien shall be by each Borrower in its several respective
property. In the event that there is more than one Borrower, any loan
which is secured by this Agreement shall be deemed to be made at the
request of and for the benefit of each Borrower.
12. The section headings herein are included for convenience only and
shall not be deemed to be a part of this Agreement.
G. ASSIGNMENT BY SECURED PARTY. Secured Party, from time to time,
without notice to the Borrower, may sell, assign, transfer or otherwise dispose
of all or any part of the Obligations and/or the Collateral therefor. In such
event, each and every immediate and successive purchaser, assignee, transferee
or holder of all or any part of the Obligations and/or the Collateral shall have
the right to enforce this Agreement, by legal action or otherwise, for its own
benefit as fully as if such purchaser, assignee, transferee or holder were
herein by name specifically given such rights. Secured Party shall have an
unimpaired right to enforce this Agreement for its benefit to that portion of
the Obligations of Borrower as Secured Party has not sold, assigned, transferred
or otherwise disposed of.
IN WITNESS WHEREOF, this agreement has been duly executed as of the 30th
day of September, 1996.
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SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF:
BORROWER:
XXXXXX INDUSTRIES, INC., a Florida corporation
/s/ Xxxxxx X. Nohrr
-------------------------
Witness Signature By: /s/ Xxxxx X. Xxxxxx
--------------------------
XXXXX X. XXXXXX, President
XXXXXX X. NOHRR
-------------------------
Print Witness Name Address: 0000 Xx. Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
/s/ Xxxxx X. Xxxxx
-------------------------
Witness Signature
Xxxxx X. Xxxxx
-------------------------
Print Witness Name
STATE OF FLORIDA )
) ss:
COUNTY OF BREVARD )
THE FOREGOING INSTRUMENT was acknowledged before me this 30th day of
September, 1996, by XXXXX X. XXXXXX, as President of XXXXXX INDUSTRIES, INC.,
a Florida corporation, who is personally known to me, or who produced
Fl. Drivers License as identification, and who did take an oath.
/s/ Xxx Xxxxx Xxxxxx
--------------------------------------------
Notary Public Signature
--------------------------------------------
Print Notary Public Name
My commission expires:
[Notary Stamp]
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