Exhibit 5
SECURITY AGREEMENT
SECURITY AGREEMENT (this "Agreement"), made this 13th day of
November, 1996, by and between COMMODORE ENVIRONMENTAL SERVICES,
INC., a Delaware corporation having offices at 000 Xxxx 00xx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 (the "Secured
Party"), and LANXIDE PERFORMANCE MATERIALS, INC., a Delaware
corporation having its principal offices at 0000 Xxxxxxx Xxxx,
X.X. Xxx 0000, Xxxxxx, Xxxxxxxx 00000-0000 (the "Debtor");
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery
hereof, the Secured Party and the Debtor are entering into a Line
of Credit Agreement of even date herewith (the "Line of Credit
Agreement"), pursuant to which the Secured Party has agreed,
subject to the terms and conditions thereof, to extend a line of
credit to the Debtor not to exceed $3,000,000 in principal amount
outstanding at any time, with all loans and advances thereunder
(the "Advances") and interest thereon to be evidenced by that
certain Line of Credit Promissory Note of the Debtor of even date
herewith in such maximum principal amount payable to the order of
the Secured Party (the "Note"); and
WHEREAS, in order to induce the Secured Party to make the
Advances pursuant to the Line of Credit Agreement and to be
evidenced by the Note, the Debtor has agreed to grant to the
Secured Party a second priority lien and security interest
(second in priority only to the lien and security interest
heretofore granted by the Debtor to Commodore Applied
Technologies, Inc. ("CATI")) in substantially all of the Debtor's
assets, pursuant to the terms and conditions of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
Section 1. Definitions.
(a) All terms used herein which are defined in Article 1 or
Article 9 of the Uniform Commercial Code (the "Code") shall have
the meanings given therein unless otherwise defined in this
Agreement. All references to the plural herein shall also mean
the singular and to the singular shall also mean the plural. All
references to the Secured Party and the Debtor pursuant to the
definitions set forth in the recitals hereto, or to any other
person herein, shall include their respective heirs, executors,
administrators, personal representatives, successors and
permitted assigns. The words "hereof," "herein," "hereunder,"
"this Agreement" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not any
particular provision of this Agreement and as this Agreement now
exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced.
(b) In addition to those capitalized terms defined
elsewhere in this Agreement, the following terms shall have the
following respective meanings wherever used in this Agreement:
"Accounts" shall mean all present and future rights of the
Debtor to payment for goods sold or leased, for services
rendered, or for loans or other financial accommodations
extended, whether or not evidenced by instruments or chattel
paper, and whether or not earned by performance.
"Collateral" shall have the meaning set forth in Section 2
below.
"Equipment" shall mean all of the Debtor's now owned and
hereafter acquired equipment, machinery, computers and computer
hardware and software (whether owned or licensed), vehicles,
tools, furniture, fixtures, all attachments, accessions and
property now or hereafter affixed thereto or used in connection
therewith, and substitutions and replacements thereof, wherever
located.
"Event of Default" shall have the meaning ascribed thereto
in the Note.
"Inventory" shall mean all of the Debtor's now owned and
hereafter existing or acquired raw materials, work in process,
finished goods and all other inventory of whatsoever kind or
nature, wherever located.
"Loan Obligations" shall mean the collective reference to
all principal, interest, collection costs, expenses and other
amounts owing or payable from time to time under the Note, and
any further amounts which, pursuant to the Line of Credit
Agreement and/or this Agreement, may be deemed part of and/or
added to the Loan Obligations, whether arising before or after
the commencement of any case with respect to the Debtor under the
United States Bankruptcy Code or any similar statute (including,
without limitation, the payment of interest and other amounts
which would accrue and become due but for the commencement of
such case).
"Person" or "person" shall mean any individual, sole
proprietorship, partnership, corporation, business trust,
unincorporated association, joint stock corporation, trust, joint
venture or other entity or any government or any agency or
instrumentality or political subdivision thereof.
"Records" shall mean all of the Debtor's present and future
books of account of every kind or nature, purchase and sale
agreements, invoices, ledger cards, bills of lading and other
shipping evidence, statements, correspondence, memoranda, credit
files and other data relating to the Collateral or any account
debtor, together with the tapes, disks, diskettes and other data
and software storage media and devices, file cabinets or
containers in or on which the foregoing are stored (including any
rights of the Debtor with respect to the foregoing maintained
with or by any other Person).
"Security Interests" shall mean the liens and security
interests granted by the Debtor to the Secured Party, and all
rights and remedies in respect thereof, pursuant to this
Agreement.
Section 2. The Security Interests.
In order to secure the due and punctual payment and
performance of all Loan Obligations owing to the Secured Party
from time to time, the Debtor hereby grants to the Secured Party
a continuing lien and security interest in, and hereby assigns to
the Secured Party as collateral security, the following described
property and interests of the Debtor, whether now owned or
hereafter acquired or existing, and wherever located
(collectively, the "Collateral"):
(a) all Accounts;
(b) all present and future contract rights, general
intangibles (including, but not limited to, tax and duty refunds,
registered and unregistered patents, trademarks, service marks,
copyrights, trade names, applications for the foregoing, trade
secrets, goodwill, processes, drawings, blueprints, customer
lists, licenses, whether as licensor or licensee (to the extent
that the granting of the Secured Party's lien and security
interest therein will not cause a termination of such licenses or
result in the loss of the benefits of such licenses to the
Debtor), choses in action and other claims and existing and
future leasehold interests in equipment, real estate and
fixtures, those intangibles set forth in Schedule 1 annexed
hereto, and the right to xxx for infringement and/or unauthorized
use of any intangibles), chattel paper, documents, instruments,
letters of credit, bankers' acceptances and guaranties; provided,
however, the Collateral shall not include any license agreements
or comparable agreements relating to the use of intellectual
property granted by Lanxide Corporation to the Debtor at any time
and from time to time;
(c) all present and future monies, securities, credit
balances, deposits, deposit accounts and other property of the
Debtor now or hereafter held or received by or in transit to the
Secured Party or its affiliates or at any other depository or
other institution from or for the account of the Secured Party,
whether for safekeeping, pledge, custody, transmission,
collection or otherwise, and all present and future liens,
security interests, rights, remedies, title and interest in, to
and in respect of Accounts and other Collateral, including,
without limitation, (i) rights and remedies under or relating to
guaranties, contracts of suretyship, letters of credit and credit
and other insurance related to the Collateral, (ii) rights of
stoppage in transit, replevin, repossession, reclamation and
other rights and remedies of an unpaid vendor, lienor or secured
party, (iii) goods described in invoices, documents, contracts or
instruments with respect to, or otherwise representing or
evidencing, Accounts or other Collateral, including, without
limitation, returned, repossessed and reclaimed goods, and (iv)
deposits by and property of account debtors or other persons
securing the obligations of account debtors;
(d) all Inventory;
(e) all Equipment;
(f) all Records; and
(g) all products and proceeds of the foregoing, in any
form, including, without limitation, insurance proceeds and all
claims against third parties for loss or damage to or destruction
of any or all of the foregoing.
Section 3. Filing; Further Assurances.
The Debtor will, at its expense, execute, deliver, file and
record (in such manner and form as the Secured Party shall
require), or permit the Secured Party to file and record, (a) all
financing statements, (b) all carbon, photographic or other
reproductions of financing statements or this Agreement (which
shall be sufficient as a financing statement hereunder), (c) all
endorsements to title to any vehicles or other Collateral as may
be required in order to perfect the Security Interests therein,
and (d) all specific assignments or other papers that may be
necessary or desirable, or that the Secured Party may request, in
order to create, preserve, perfect or validate any Security
Interest or to enable the Secured Party to exercise and enforce
its rights hereunder with respect to any of the Collateral. The
Debtor hereby appoints the Secured Party as the Debtor's
attorney-in-fact to execute and file, in the name and on behalf
of the Debtor, such additional financing statements as the
Secured Party may request. In addition, in the event and to the
extent that any of Collateral consists of or is represented by
instruments or other evidences of ownership such as would require
physical possession of same in order to perfect the Security
Interests therein, the Debtor will promptly, at its expense,
deliver same to the Secured Party, with any necessary
endorsements thereon.
Section 4. Representations and Warranties of the Debtor.
The Debtor hereby represents and warrants as follows:
(a) That the Debtor is the valid and lawful owner of
all of the Collateral, free from any and all adverse liens,
security interests or encumbrances (other than the liens,
security interests and encumbrances heretofore granted by the
Debtor to CATI).
(b) That the Debtor has full right, power and
authority to grant to the Secured Party the Security Interests
pursuant to the terms of this Agreement, and that, except for the
liens and security interests heretofore granted by the Debtor to
CATI, the Security Interests do not conflict with any rights of
any other persons or any commitments of the Debtor to any other
persons.
(c) That no financing statement covering any of the
Collateral is on file in any public office, other than financing
statements heretofore filed in favor of CATI, and financing
statements filed pursuant to this Agreement.
(d) That all additional information, representations
and warranties contained in Exhibit A annexed hereto and made a
part hereof are true, accurate and complete on the date hereof.
Section 5. Covenants of the Debtor.
The Debtor hereby covenants and agrees as follows:
(a) That the Debtor will defend the Collateral and the
Security Interests against all claims and demands of all persons
at any time claiming any adverse interest therein or
thereagainst.
(b) That the Debtor will give written notice thereof
to the Secured Party at least thirty (30) days prior to (i) any
change in the location of the principal office of the Debtor or
the office where the Debtor maintains its books and records
pertaining to the Accounts and/or any other Collateral, (ii) any
change in any of the information contained in Exhibit A annexed
hereto, and (iii) the movement or location of any Collateral to
or at any address other than as set forth in said Exhibit A.
(c) That the Debtor will promptly pay any and all
taxes, assessments and governmental charges upon the Collateral
prior to the date that penalties may attach thereto or same
become a lien on any of the Collateral, except to the extent that
such taxes, assessments and charges shall be contested by the
Debtor in good faith and through appropriate proceedings.
(d) That the Debtor will immediately notify the
Secured Party of any event causing a material loss or diminution
in the value of the Collateral, and the amount (or the Debtor's
best estimate of the amount) of such loss or diminution.
(e) That the Debtor will at all times have and
maintain insurance with respect to all insurable Collateral in
amounts and of types as are customarily maintained by other
companies of comparable size and type of business, each of which
insurance policies shall name the Secured Party as a loss payee
as its interests may appear. All policies of insurance shall
provide for a minimum of thirty (30) days' written notice to the
Secured Party prior to any cancellation, modification or non-
renewal thereof. The Debtor shall, on the date hereof and from
time to time upon request hereafter, furnish the Secured Party
with certificates or other evidence satisfactory to the Secured
Party of compliance with the foregoing insurance provisions.
(f) That the Debtor will keep all of the Collateral
free from any and all adverse liens, security interests or
encumbrances and in good order and repair, reasonable wear and
tear excepted, and will not waste or destroy the Collateral or
any part thereof.
(g) That the Debtor will not use any of the Collateral
in violation of any applicable law.
Section 6. Records Relating to Collateral.
The Debtor will keep and maintain complete and accurate
records concerning the Collateral, including the Accounts and all
chattel paper included in the Accounts, at its principal
executive office as set forth in Exhibit A annexed hereto, or at
such other place(s) of business as the Secured Party may approve
in writing. The Debtor will (a) faithfully hold and preserve
such records and chattel paper, (b) permit representatives of the
Secured Party, at any time during normal business hours, upon
reasonable notice, and without undue material disruption of the
Debtor's business, to examine and inspect the Collateral and to
make copies and abstracts of such records and chattel paper, and
(c) furnish to the Secured Party such information and reports
regarding the Collateral as the Secured Party may from time to
time reasonably request.
Section 7. Collections with Respect to Accounts.
The Debtor will, at its expense:
(a) endeavor to collect or cause to be collected from
customers and other Persons indebted on Accounts, as and when
due, any and all amounts, including interest, owing under or on
account of each Account.
(b) take or cause to be taken such appropriate action to
repossess goods, the sale of which gave rise to any Account, or
to enforce any rights or liens under Accounts, as the Debtor or
the Secured Party may deem proper, and in the name of the Debtor
or the Secured Party, as the Secured Party may deem proper;
provided, that (i) the Debtor will use its best judgment to
protect the interests of the Secured Party, and (ii) the Debtor
shall not be required under this Section 7 to take any action
which would be contrary to any applicable law. Subject to any
corresponding rights which may concurrently be exercisable by
CATI in respect of its security interests, the Debtor shall, at
the request of the Secured Party following the occurrence and
during the continuance of an Event of Default, notify the account
debtors of the Security Interests of the Secured Party in any of
the Accounts, and the Secured Party may itself at any such time
so notify account debtors. The Secured Party shall have full
power at any time after such notice to collect, compromise,
endorse, sell or otherwise deal with any or all outstanding
Accounts or the proceeds thereof in the name of either the
Secured Party or the Debtor. In the event that, after notice to
any account debtors directing payments to the Secured Party, the
Debtor receives any payment(s) on any Account(s), then, subject
to any rights which may concurrently be exercisable by CATI, such
payment(s) shall be held by the Debtor in trust for the Secured
Party and immediately turned over to the Secured Party as
aforesaid, for application in accordance with Section 11 below.
Section 8. General Authority.
(a) In the event that the Secured Party shall at any time
be required to take action to defend the Security Interests, or
the Debtor shall fail to satisfy its obligations under Section
5(c) or 5(e) hereof, then the Secured Party shall have the right,
but shall not be obligated, to take such steps and make such
payments as may be required in order to effect compliance, and
the Secured Party shall have the right either to demand and
receive immediate reimbursement from the Debtor for all costs and
expenses incurred by the Secured Party in connection therewith,
and/or to add such costs and expenses to the Loan Obligations.
(b) The Debtor hereby irrevocably appoints the Secured
Party the true and lawful attorney for the Debtor, with full
power of substitution, in the name of the Debtor, the Secured
Party or otherwise, for the sole use and benefit of the Secured
Party, but at the Debtor's expense, to the extent permitted by
law to exercise, at any time and from time to time during the
continuance of an Event of Default, any or all of the following
powers with respect to any or all of the Collateral (which powers
shall be in addition and supplemental to any powers, rights and
remedies of the Secured Party described herein):
(i) to demand, xxx for, collect, receive and give
acquittance for any and all monies due or to become due upon or
by virtue thereof; and
(ii) to receive, take, endorse, assign and deliver any
and all checks, notes, drafts, documents and other negotiable and
non-negotiable instruments and chattel paper taken or received by
the Secured Party in connection therewith; and
(iii) to settle, compromise, discharge, extend,
compound, prosecute or defend any action or proceeding with
respect thereto; and
(iv) to sell, transfer, assign or otherwise deal in or
with same, or the proceeds or avails thereof, or the related
goods securing the Accounts, as fully and effectually as if the
Secured Party were the absolute owner thereof; and
(v) to extend the time of payment of any or all
thereof and to make any allowance and other adjustments with
reference thereto; and
(vi) to discharge any taxes, liens, security interests
or other encumbrances at any time placed thereon.
Anything hereinabove contained to the contrary notwithstanding,
the Secured Party shall give the Debtor not less than ten (10)
days' prior written notice of the time and place of any sale or
other intended disposition of any of the Collateral, except any
Collateral which is perishable or threatens to decline speedily
in value or is of a type customarily sold on a recognized market.
The Secured Party and the Debtor hereby agree that such notice
constitutes "reasonable notification" within the meaning of
Section 9-504(3) of the Code. The Secured Party's rights under
this Section 8 are expressly subject to any corresponding rights
which may concurrently be exercisable by CATI.
Section 9. Remedies Upon Event of Default.
If any Event of Default shall have occurred and be
continuing, then, subject to any corresponding rights which may
concurrently be exercisable by CATI, the Secured Party may
exercise all of the rights and remedies of a secured party under
the Code (whether or not the Code is in effect in the
jurisdiction where such rights and remedies are exercised) and,
in addition, the Secured Party may, without being required to
give any notice, except as herein provided or as may be required
by mandatory provisions of law, (a) apply the cash, if any, then
held by it as Collateral in the manner specified in Section 11
hereof, and (b) if there shall be no such cash or if such cash
shall be insufficient to pay all of the Loan Obligations in full,
sell the Collateral, or any part thereof, at public or private
sale or at any broker's board or on any securities exchange, for
cash, upon credit or for future delivery, and at such price or
prices as the Secured Party may deem satisfactory. The Secured
Party may require the Debtor to assemble all or any part of the
Collateral and make it available to the Secured Party at a place
to be designated by the Secured Party which is reasonably
convenient to the Debtor and the Secured Party. Any holder of a
Loan Obligation may be the purchaser of any or all of the
Collateral so sold at any public sale (or, if the Collateral is
of a type customarily sold on a recognized market or is of a type
which is the subject of widely distributed standard price
quotations, at any private sale) and thereafter hold same,
absolutely free from any right or claim of whatsoever kind. The
Secured Party is authorized, at any such sale, if it reasonably
deems same to be advisable, to restrict the prospective bidders
or purchasers of any of the Collateral which could be subject to
federal or state securities laws to persons who will represent
and agree that they are purchasing for their own account for
investment and not with a view to the distribution or sale of any
of such Collateral. Upon any such sale, the Secured Party shall
have the right to deliver, assign and transfer to the purchaser
thereof the Collateral so sold. Each purchaser at any such sale
shall hold the Collateral so sold absolutely, free from any claim
or right of whatsoever kind, including any equity or right of
redemption of the Debtor. To the extent permitted by law, the
Debtor hereby specifically waives all rights of redemption, stay
or appraisal which it has or may have under any rule of law or
statute now existing or hereafter adopted. The Secured Party
shall give the Debtor not less than ten (10) days' prior written
notice of its intention to make any such public or private sale
or sales at a broker's board or on a securities exchange. Such
notice, in case of a public sale, shall state the time and place
fixed for such sale, and in case of sale at a broker's board or
on a securities exchange, shall state the board or exchange at
which such sale is to be made and the day on which the
Collateral, or the portion thereof being sold, will first be
offered for sale at such board or exchange. Any such public sale
shall be held at such time or times within ordinary business
hours and at such place or places as the Secured Party may fix in
the notice of such sale. At any such sale, the Collateral may be
sold in one lot as an entirety or in separate parcels, as the
Secured Party may determine. The Secured Party shall not be
obligated to make such sale pursuant to any such notice. The
Secured Party may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from
time to time by announcement at the time and place fixed for the
sale, and such sale may be made at any time or place to which the
same may be adjourned. In case of any sale of all or any part of
the Collateral on credit or for future delivery, the Collateral
so sold may be retained by the Secured Party until the selling
price is paid by the purchaser thereof, but the Secured Party
shall not incur any liability in the case of the failure of such
purchaser to take up and pay for the Collateral so sold and, in
case of any such failure, such Collateral may again be sold upon
like notice. The Secured Party, instead of exercising the power
of sale herein conferred upon it, may proceed by a suit or suits
at law or in equity to foreclose the Security Interests and sell
the Collateral, or any portion thereof, under a judgment or
decree of a court or courts of competent jurisdiction.
Section 10. Right of Secured Party to Use and Operate
Collateral.
Upon the occurrence and during the continuance of any Event
of Default, to the extent permitted by law, the Secured Party
shall have the right and power, with or without legal process, to
enter upon any or all of the Debtor's premises, to take
possession of all or any part of the Collateral, and to exclude
the Debtor and all persons claiming under the Debtor wholly or
partly therefrom, and thereafter to sell same in accordance
herewith and/or hold, store, and/or use, operate, manage and
control the same. Upon any such taking of possession, the
Secured Party may, from time to time, at the expense of the
Debtor, make all such repairs, replacements, alterations,
additions and improvements to the Collateral as the Secured Party
may deem proper. In such case, the Secured Party shall have the
right to manage and control the Collateral and to carry on the
business and to exercise all rights and powers of the Debtor in
respect thereof as the Secured Party shall deem proper, including
the right to enter into any and all such agreements with respect
to the leasing and/or operation of the Collateral or any part
thereof as the Secured Party may see fit; and the Secured Party
shall be entitled to collect and receive all rents, issues,
profits, fees, revenues and other income of the same and every
part thereof. Such rents, issues, profits, fees, revenues and
other income shall be applied to pay the expenses of holding and
operating the Collateral and of conducting the business thereof,
and of all maintenance, repairs, replacements, alterations,
additions and improvements, and to make all payments which the
Secured Party may be required or may elect to make, if any, for
taxes, assessments, insurance and other charges upon the
Collateral or any part thereof, and all other payments which the
Secured Party may be required or authorized to make under any
provision of this Agreement (including legal costs and reasonable
attorneys' fees). The remainder of such rents, issues, profits,
fees, revenues and other income shall be applied in accordance
with Section 11 below, and, unless otherwise provided or required
by law or by a court of competent jurisdiction, any surplus shall
be paid over to the Debtor. The Secured Party's rights under
this Section 10 are expressly subject to any corresponding rights
which may concurrently be exercisable by CATI.
Section 11. Application of Collateral and Proceeds.
The proceeds of any sale of, or other realization upon, all
or any part of the Collateral shall be applied in the following
order of priorities:
(a) first, to pay the expenses of such sale or other
realization, and all expenses, liabilities and advances incurred
or made by or on behalf of the Secured Party in connection
therewith, and any other unreimbursed expenses for which the
Secured Party is to be reimbursed pursuant to Section 12 hereof;
(b) second, to the payment of the Loan Obligations
then outstanding in such order or manner as the Secured Party, in
its sole discretion, shall determine; and
(c) finally, to pay to the Debtor, or its successors
or assigns, or as a court of competent jurisdiction may direct,
any surplus then remaining from such proceeds.
Section 12. Expenses; Secured Party's Lien.
The Debtor will, forthwith upon demand, pay to the Secured
Party:
(a) the amount of any taxes or other charges which the
Secured Party may have been required to pay by reason of the
Security Interests (including any applicable transfer taxes) or
to free any of the Collateral from any lien thereon; and
(b) the amount of any and all reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of its
counsel and of any agents not regularly in its employ, which the
Secured Party may incur in connection with (i) the collection,
sale or other disposition of any of the Collateral, (ii) the
exercise by the Secured Party of any of the powers conferred upon
it hereunder, and/or (iii) any default on the Debtor's part
hereunder.
Section 13. Termination of Security Interests; Release of
Collateral.
Upon the indefeasible payment in full of all Loan
Obligations, the Security Interests shall terminate and all
rights in the Collateral shall revert to the Debtor. Upon any
such termination of the Security Interests or release of
Collateral, the Secured Party will, at the Debtor's expense,
execute and deliver to the Debtor such documents as the Debtor
shall reasonably request to evidence the termination of the
Security Interests or the release of such Collateral, as the case
may be.
Section 14. Right of Set-Off.
In furtherance and not in limitation of any provisions
herein contained, the Debtor hereby agrees that any and all
deposits or other sums at any time due from the Secured Party to
the Debtor shall at all times constitute security for the
Obligations, and the Secured Party may exercise any right of set-
off against such deposits or other sums as may accrue or exist
hereunder and/or under applicable law.
Section 15. Notices.
All notices, demands and other communications hereunder
shall be given or made to the subject party at its address first
set forth above, or at such other address and/or telecopier
number as the addressee may hereafter specify for the purpose by
means of written notice to the other party hereto. Such notices
and other communications will be effectively given only if and
when given in writing and personally delivered, when sent by
facsimile transmission to a party's designated facsimile number,
one (1) day after being sent by Federal Express or other
recognized overnight courier service with all charges prepaid or
billed to the account of the sender, or three (3) days after
being mailed by first class mail with all postage prepaid.
Section 16. Waivers; Non-Exclusive Remedies.
No failure on the part of the Secured Party to exercise, and
no delay in exercising, and no course of dealing with respect to,
any right, power or remedy under this Agreement shall operate as
a waiver thereof; nor shall any single or partial exercise by the
Secured Party of any right, power or remedy under this Agreement
preclude any exercise of any other right, power or remedy. The
remedies in this Agreement are cumulative and are not exclusive
of any other remedies provided by law, in equity or otherwise.
Section 17. Changes in Writing.
Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally but only by a
statement in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is
sought.
Section 18. Governing Law; Consent to Jurisdiction; Waiver of
Jury Trial.
(a) This Agreement shall (irrespective of where it is
executed, delivered and/or performed) be governed by and
construed in accordance with the laws of the State of New York
(without giving effect to principles of conflicts of law), except
as otherwise required by mandatory provisions of law and except
to the extent that remedies provided by the laws of any State
other than New York are governed by the laws of said State.
(b) The Debtor hereby consents to the jurisdiction of all
courts sitting in the State of New York, and of all courts from
which an appeal therefrom may be taken, with respect to any
action or proceeding relating to this Agreement or any related
transactions. THE DEBTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY IN ANY SUCH ACTION OR PROCEEDING, AND CONSENTS THAT THE
SECURED PARTY MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE DEBTOR WITH RESPECT TO
JURISDICTION AND THE WAIVER OF THE RIGHT TO TRIAL BY JURY.
Section 19. Severability.
If any provision hereof is held invalid or unenforceable in
any jurisdiction, such provision shall (for purposes of
enforcement in such jurisdiction only) be reduced in scope and
effect to the extent necessary to render same enforceable, and
the other provisions hereof shall remain in full force and effect
in such jurisdiction and shall be liberally construed in favor of
the Secured Party.
Section 20. Headings.
The captions and Section headings in this Agreement are for
convenience of reference only, and shall not limit or otherwise
affect the meaning or interpretation of any provision hereof.
Section 21. Assignment.
This Agreement may not be assigned by the Debtor without the
Secured Party's prior written consent, but shall otherwise be
binding upon and inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, personal
representatives, successors and assigns.
IN WITNESS WHEREOF, this Agreement has been executed by the
parties hereto as of the date first set forth above.
SECURED PARTY:
COMMODORE ENVIRONMENTAL SERVICES,
INC.
By: /s/ Xxxxxx Xxxxx
________________________________
DEBTOR:
LANXIDE PERFORMANCE MATERIALS, INC.
By: /s/ Xxxx Xxxxxxxxx
________________________________
STATE OF DELAWARE )
) ss.:
COUNTY OF NEW CASTLE)
On this 13th day of November, 1996, before me, a
Notary Public in and for the jurisdiction aforesaid, personally
appeared Xxxx X. Xxxxxxxxx, to me known, who being
by me duly sworn, did depose and say that he is the
President of LANXIDE PERFORMANCE MATERIALS, INC., the
corporation named in and which executed the foregoing Security
Agreement; that he is duly authorized to execute same; and that
he subscribed, swore to and acknowledged the same in his capacity
as such officer and as the authorized and binding act and deed of
said corporation.
Xxxxxxx X. Keckn
________________________________
Notary Public
SCHEDULE 1
TO SECURITY AGREEMENT
Patents, Copyrights and Trademarks
1. Patents and Patent Applications
File Patent Country Registration No. Date
None as of the date hereof.
2. Copyrights, Trademarks, Tradenames, Service Marks and
Applications
None as of the date hereof.
EXHIBIT A
TO SECURITY AGREEMENT
Additional Information, Representations and Warranties
(1) The exact name of the Debtor is as first set forth in the
Security Agreement.
(2) The Debtor has no subsidiaries.
(3) The Debtor owns and uses the following trade names:
None.
(4) The Debtor is duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(5) The principal executive office of the Debtor is located at
0000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000-0000, and the
books and records pertaining to the Accounts and other
Collateral are located at such address.
(6) The Debtor is not required, by the nature of its business or
the location of its property or assets, to be qualified to
do business as a foreign corporation in any jurisdiction.
(7) The Debtor has no place of business other than that
disclosed in Item (5) above.
(8) The Debtor does not own or have interests in personal
property located at places other than that disclosed in item
(5) above.
(9) The Debtor owns property consisting of leasehold
improvements and/or fixtures only at the location specified
in item (5) above.
