SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of the 26th day of September, 1997,
by and between HAWAIIAN NATURAL WATER COMPANY, INC., a Hawaii corporation, the
principal place of business and post office address of which is 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx 00000, (hereinafter called the "Pledgor"), and
BOTTLES PACKAGING, INC., a California corporation, the principal place of
business and post office address of which is 00000 Xxxxx Xxxxxx, Xxxx "X,"
Xxxxxxxx Xxxxxx, Xxxxxxxxxx 00000, (hereinafter called the "Secured Party").
W I T N E S S E T H T H A T:
1. PLEDGE OF COLLATERAL. To secure the repayment of: (a) a purchase
money loan made by the Secured Party to Pledgor, in the principal amount of
EIGHT HUNDRED TWENTY FIVE THOUSAND AND NO/100 DOLLARS ($825,000.00), together
with interest thereon, which loan is evidenced by that certain promissory note
dated concurrently herewith executed by the Pledgor, as Maker, and payable to
the Secured Party (the "Note"), the making of which loan will be of benefit to
the Pledgor and (b) all Secured Party expenses as described in Sections
4.2 and 8 hereof (collectively, the "Indebtedness"), the Pledgor hereby
pledges unto the Secured Party, its successors and assigns, and grants to
Secured Party, its successors and assigns, a security interest in, the
Collateral described herein.
2. THE COLLATERAL. The collateral subject to the security interest
hereinabove granted is the following (Sections 2.1 and 2.2 being collectively
referred to as the "Collateral"):
2.1 EQUIPMENT. The Pledgor's equipment described in Exhibit A
attached hereto and incorporated by reference herein and any replacements
thereof (the "Equipment"); and
2.2 SALES AND OTHER PROCEEDS. Any proceeds or
distributions received, whether voluntary or involuntary, from the sale,
exchange, or other disposition of the Equipment, and any and all other proceeds
of any insurance payable to or on account of Pledgor with respect to the
Equipment, and any and all payments made or due and payable to Pledgor in
connection with any confiscation, condemnation, seizure or forfeiture
by any governmental entity (or any person acting under color of
governmental authority).
3. APPLICATION OF CREDIT PROCEEDS. If all or part of the Collateral
is being acquired with the proceeds of the Indebtedness, no part of the
proceeds of the Indebtedness will be used for personal, family or household
purposes. No part of the proceeds of the Indebtedness will be used by the
Pledgor for any purpose inconsistent with any statement given by the Pledgor
to the Secured
Party with respect to the regulation thereof under Regulation U of the Board of
Governors of the Federal Reserve System.
4. WARRANTIES. The Pledgor warrants to Secured Party upon execution
of this Security Agreement, until the full payment, performance and
satisfaction in full of the Indebtedness, as follows:
4.1 LOCATION OF EQUIPMENT. Pledgor shall keep the
Equipment within the State of Hawaii; provided, however, that Pledgor may
change the location of Equipment so long as (a) Pledgor shall notify Secured
Party of such change by written notice not less than thirty (30) days prior to
the date on which the Equipment is moved to such new location, (b) such new
location is in the United States, and (c) at the time of such written
notification, Pledgor executes and delivers any financing statements necessary
to perfect and continue Secured Party's security interests in the Equipment.
4.2 OTHER ENCUMBRANCES. At the time of execution of this
Security Agreement, no financing statement has been executed by Pledgor showing
any secured party other than the Secured Party and covering any of the
Collateral or any proceeds thereof is on file in any public office, except for
the security interest granted hereby. The Pledgor will keep the Collateral free
from any other security interest or voluntary encumbrance and will assist in the
preparation of and will execute from time to time, alone or with the Secured
Party, such financing statements or other documents and do, make, execute,
file and/or deliver such other acts or instruments as the Secured
Party may reasonably request to establish and maintain the perfection of the
security interests in the Collateral hereby granted and otherwise to protect and
defend the Collateral against all claims, demands, rights and interests of third
parties. At its option the Secured Party may discharge taxes, license fees,
assessments, liens, security interests and other encumbrances and charges of
every kind, to whomsoever assessed or chargeable, at any time levied
or placed on the Collateral or any interest therein and may make any advances
or incur such expenses or otherwise act as may in the Secured Party's reasonable
judgment seem advisable to protect the Secured Party's security hereunder
(notwithstanding the invalidity of any tax, assessment, rate, encumbrance or
charge paid in such behalf by the Secured Party).
4.3 INSURANCE. With respect to the Equipment, Pledgor shall
maintain, in full force and effect, comprehensive general property damage
insurance, naming Pledgor and Secured Party as joint insured payees. In
the event of destruction of the Equipment, such insurance proceeds shall be
utilized by Pledgor to purchase comparable equipment, in Pledgor's reasonable
judgment, with equal or greater productivity capacity than the Equipment, and
Secured Party shall assist and cooperate with Pledgor in endorsing
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any insurance proceeds check(s) to Pledgor's acquisition of such replacement
equipment. Alternatively, Pledgor shall be granted the discretion to apply all
or a portion of the insurance proceeds payable herein to the prepayment of the
then outstanding balance of the Note. In the event of destruction of the
Equipment, Pledgor shall have the right to immediately defer payments of
principal and interest under the Note to Secured Party for the period commencing
upon such destruction and ending upon the earlier of (i) one hundred
eighty (180) days after Pledgor's receipt of insurance proceeds, or (ii) the
installation of replacement equipment. Pledgor shall give to Secured Party
written notice of its intention to defer payments within five (5) days
after the event of destruction. In the event of such deferral, Pledgor
will be obligated to accrue additional simple interest monthly at the rate of
0.8834 on the entire outstanding balance of the Note at the beginning of such
deferral period. It is expressly understood that any such interest resulting
from a deferral will be in addition to the principal and interest repayment
obligations under the Note. The maximum deferral period herein shall not exceed
three hundred sixty (360) days. Beginning with the earlier of (i) one hundred
eighty one (181) days after the Pledgor's receipt of insurance proceeds, or (ii)
the installation of the replacement equipment, Pledgor will resume to pay
principal and interest as follows: The interest and principal under the Note
and additional interest deferred during the deferral period will be amortized
over the remaining repayment period of the Note, and such amortized amounts will
be added in equal amounts to each payment under the Note made by Pledgor to
Secured Party. Such insurance shall be in an amount no less than the lower of
the then outstanding balance of the Note or the replacement value of the
Equipment, and shall contain an agreement by the insurer that the insurance
shall not be canceled without at least ten (10) days prior notice to Secured
Party. All insurance required pursuant to this Subsection shall be effected
under valid and enforceable policies issued by insurance companies authorized to
do business in the State of Hawaii.
INSURANCE NOTICE: THE PLEDGOR IS FREE TO OBTAIN ANY INSURANCE
REQUIRED UNDER THIS SECURITY AGREEMENT FROM ANY INSURANCE COMPANY AUTHORIZED TO
DO BUSINESS IN THE STATE OF HAWAII. THE SECURED PARTY SHALL NOT MAKE THE
GRANTING OF ANY LOAN OR DISBURSEMENT OF ANY FUNDS SECURED BY THIS
SECURITY AGREEMENT CONTINGENT UPON THE PLEDGOR'S OBTAINING OF ANY INSURANCE
FROM AN INSURANCE COMPANY DESIGNATED BY THE SECURED PARTY.
4.4 PRESERVATION OF COLLATERAL. The Pledgor shall do and perform
all acts that may be necessary and appropriate to maintain, preserve and protect
the Collateral.
4.5 COMPLIANCE WITH LAWS. ETC. The Pledgor shall comply with all
laws, regulations, and ordinances, and all policies of insurance, relating to
possession, operation, maintenance and control of the Collateral.
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4.6 CHANGE IN NAME. TRADE NAME. OR FEDERAL
IDENTIFICATION NUMBER. The Pledgor shall not change its corporate name, trade
name or federal identification number, provided, however, that Pledgor make such
changes so long as such amendment occurs by written notice to Secured Party no
less than thirty (30) days prior to the date on which such new name, trade name,
or federal identification number becomes valid, and at the time of such written
notification, Pledgor executes and delivers any financing statements amendments
necessary to continue to perfect Secured Party's security interests in the
Collateral.
4.7 DISPOSITION OF THE COLLATERAL. The Pledgor shall not
surrender or lose possession of (other than to Secured Party), sell, or
otherwise dispose of or transfer any of the Collateral or any right or interest
therein, except to the extent permitted by this Security Agreement. Not
Withstanding any other provision in this Security Agreement to the contrary,
Pledgor shall be entitled to place subordinate liens on the Collateral.
4.8 NOTICE TO SECURED PARTY. Pledgor shall promptly provide
written notice, upon its receipt of the same, to Secured Party of any notice of
default or acceleration of any underlying indebtedness secured by the
Collateral.
5. RECORDS. The Pledgor will keep and maintain at its own cost
and expense, complete files and records concerning the Collateral and all
dealings with regard thereto. Upon the occurrence of an Event of Default (as
defined herein), the Pledgor shall, at its own expense, deliver any such files
and records to the Secured Party at any time at the Secured Party's request.
Upon the occurrence of an Event of Default, the Secured Party or any one
designated by it may at any time inspect the same and make extracts therefrom as
it deems advisable.
6. SECURED PARTY'S RIGHTS AND REMEDIES.
6.1 FURTHER ASSURANCES. Pledgor, upon the reasonable request of
the Secured Party, will execute and deliver such further instruments as may be
necessary and proper to carry out more effectively the purposes of this Security
Agreement and to subject to the lien and security interest hereof any of the
Collateral herein described and any substitutions or replacements thereto.
Pledgor hereby irrevocably makes, constitutes, and appoints Secured Party (and
its officers, employees, and agents) as Pledgor's true and lawful attorney with
power to sign the name of Pledgor on any of the above-referenced instruments
which need to be executed, recorded, or filed, and to do any and all things
necessary in the name of Pledgor, in order to perfect, or continue the
perfection of, Secured Party's security interests in the Collateral, PROVIDED,
HOWEVER, that Secured Party shall only exercise rights under this power of
attorney upon the occurrence of an Event of Default (as hereinafter defined),
and further upon Pledgor's refusal or failure
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to execute any of the above-described or similar documents required herein
after two (2) business days prior written notice from Secured Party.
6.2 EVENT OF DEFAULT. Upon the occurrence of an Event of Default
(as hereinafter defined), the Secured Party shall have the following rights and
remedies:
(a) In the event of any public sale of the Collateral
hereunder, or if any of the Collateral subject hereto may not be publicly
offered or sold by the Secured Party, at any time when the Secured Party shall
determine to exercise its right to sell all or part of the Collateral pursuant
to this Security Agreement, and in the Secured Party's reasonable judgment, the
Secured Party is hereby authorized, after advance written notification to
Pledgor, to sell such of the Collateral as it may determine by public or private
sale, in such manner, method, time, place and terms which are deemed
commercially reasonable under the Hawaii Uniform Commercial Code;
(b) Secured Party may notify any person liable for any
payment with respect to any of the Collateral or require Pledgor to notify such
person to make payment directly to the Secured Party and the Secured Party may
exercise all remedies for the enforcement of payment of any receivable,
including without limitation, the commencement and prosecution of legal
proceedings, which Pledgor could exercise;
(c) Secured Party may assign this Security Agreement
and in such event (i) the assignee shall be entitled, upon notifying the
Pledgor, to payment and performance of all obligations of the Pledgor hereunder,
(ii) the assignee shall be entitled to all of the Secured Party's rights and
remedies hereunder and (iii) the Pledgor will assert against assignee no claims
or defenses it may have against the Secured Party except those arising under the
Note;
(d) The Secured Party may apply the whole or any part of any
payment by the Pledgor or any proceeds constituting the Collateral hereunder
against any of the Indebtedness, PROVIDED, HOWEVER, that any surplus funds after
payment of the Indebtedness and any other allowable expenses or charges under
this Security Agreement shall be promptly returned to Pledgor;
(e) Secured Party may, but shall not be required to, set off
any obligations owing by the Secured Party to the Pledgor against any of the
Indebtedness whether the Indebtedness has matured or not or is absolute or
contingent, without first resorting to the Collateral and without prejudice to
any other rights or remedies of the Secured Party or the security interest in
the Collateral; and
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(f) Secured Party shall have the rights and remedies with
respect to any and all of the Indebtedness and the Collateral provided in this
Security Agreement and the Uniform Commercial Code in force in the State of
Hawaii on the date hereof.
6.3 ACCELERATION. Whenever an Event of Default has occurred or
is continuing and after the running of any applicable cure periods, the whole
amount of the Indebtedness secured hereby shall at the option of the Secured
Party become at once due and payable.
6.4 DEFAULT. The Pledgor shall be in default hereunder if any
one or more of the following events (herein called "Events of Default") shall
happen, that is to say:
(a) if the Pledgor shall default in the payment of any
amount of interest or principal payable under the Note, except as may be
provided under Section 4.3 herein, and the Pledgor shall fail to remedy the same
within any cure periods provided in the Note; or
(b) if the Pledgor shall default in the payment of any cost,
charge or advance under this Security Agreement; or
(c) if the Pledgor shall default in the due observance or
performance of any covenant, condition or agreement contained in this Security
Agreement (other than those described in Subsections 6.4(a) and (b)) and the
Pledgor shall fail to remedy the same (if capable of being remedied) within
thirty (30) days after written notice and demand for cure shall have been given
to the Pledgor by the Secured Party; or
(d) if the Pledgor shall become insolvent, or shall make an
assignment for the benefit of creditors, or shall admit in writing any inability
to pay its debts as they become due, or shall be the subject of a voluntary or
involuntary petition in bankruptcy, or shall be adjudicated a bankrupt or
insolvent, or shall file any petition or answer seeking for itself any
arrangement, composition, adjustment, liquidation, dissolution or similar relief
to which it may be entitled under any present or future statute, law or
regulation, or shall file any answer admitting the material allegations of any
petition filed against it in any such proceedings, or shall seek or consent to
or acquiesce in the appointment of any trustee, receiver or liquidator of all or
a substantial part of its properties or assets, including the Collateral; or
(e) if there shall be any other sale, transfer,
hypothecation, assignment, conveyance, lease or sublease of the Collateral, or
any portion thereof or interest therein, without the secured Party's prior
written consent, except as provided under Section 4.7 of this Security
Agreement; or
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(f) if any material representation or warranty herein shall
be untrue in any substantial respect and the Pledgor shall fail to remedy the
same (if capable of being remedied) within thirty (30) days after written notice
and demand for cure shall have been given to the Pledgor by the Secured Party;
or
(g) if the Collateral or any part thereof shall be seized,
attached, executed, confiscated, levied upon under any legal process or under
claim of legal right, or subject to forfeiture proceedings under state or
federal laws, and the Pledgor shall fail to secure release or discharge of the
Collateral from such seizure within thirty (30) days of such seizure, or if the
Collateral or any part thereof is destroyed, lost or substantially damaged and
the Pledgor shall fail to replace the Collateral within one hundred eighty (180)
days after Pledgor's receipt of insurance proceeds paid as a result of such
destruction, loss or damage; or
(h) if Pledgor fails to pay when due any payment of any
other underlying indebtedness secured by the Collateral, after the running of
any applicable cure periods associated with such indebtedness; or
(i) any event or condition occurs that results in the
acceleration of the maturity of any other underlying indebtedness secured by the
Collateral or permits the holders of such underlying indebtedness to accelerate
the maturity thereof.
6.5 UPON DEFAULT. Whenever an Event of Default under this
Security Agreement shall have occurred and be continuing, the Secured Party
shall have the following rights and remedies in addition to, and not in lieu of,
those stated above:
(a) Secured Party is hereby authorized to cause to be
transferred or registered to its name or to the name of any other person or
corporation as pledgee or trustee or otherwise any of the Collateral and such
transferee may exercise all of the other rights and privileges in connection
with the Collateral to which said transferee may be entitled by virtue of being
the tile holder of record thereof in addition to the rights and privileges
otherwise granted to the Secured Party hereunder, but the Secured Party or said
transferee shall not be obliged to exercise any of said rights or privileges;
(b) Secured Party need not keep the Collateral in its
possession identifiable. Secured Party may, after giving such notice as may be
required by law, if any, sell, transfer, compromise, discharge or extend the
whole or any part of the Collateral;
(c) Secured Party shall have the rights and remedies
provided herein and in the Hawaii Uniform Commercial Code, including the right
to assume active control over the Collateral,
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to deal with the Collateral, and to sell, assign and deliver the whole, or any
part of the Collateral, or any substitutions or additions thereto, at one or
more public or private sales, after advance written notification to Pledgor;
provided, however, the Secured Party and Pledgor shall have the right to
purchase this Collateral in whole or part at any public or private sale;
(d) Upon any sale of the Collateral, the Pledgor or the
Secured Party or its designated agent shall assign and deliver the Collateral to
the purchaser or purchasers and, after deducting all reasonable costs and
expenses of collection, and sale, including reasonable attorney's fees, shall
retain the residue of the proceeds of such collection, sale or sales, to the
Secured Party who after deducting all reasonable costs and expenses incurred by
it as a result of the Pledgor's default, including reasonable attorney's fees,
shall apply the remainder of the residue of the proceeds to the payment of the
Note. Any surplus of the residue of the proceeds of such sale shall be forthwith
returned to the Pledgor, subject to the right of the Secured Party to offset any
such excess against any other Indebtedness, secured or unsecured, which the
Pledgor may at the time owe to the Secured Party. The Pledgor agrees that the
Secured Party may conduct such sale of Collateral hereunder in accordance with
the provisions herein; and
(e) The Pledgor shall be liable for any deficiency between
the proceeds of any Collateral collected or disposed of by the Secured Party and
the unpaid balance of the Indebtedness.
7. PLEDGOR'S RIGHTS AND REMEDIES. At any time, before or after the
occurrence of any Event of Default, the Pledgor shall have the rights and
remedies provided herein and in the Hawaii Uniform Commercial Code. No failure
or delay on the part of the Secured Party exercising any power or right under
this Security Agreement nor any other power, right on default, and no single or
partial exercise of any such power or right shall preclude or be deemed a waiver
or election of any other legal remedy, power or right or further exercise
thereof. The Secured Party, notwithstanding any such failure or delay, shall
have the right thereafter to insist upon the strict performance by the Pledgor
of any and all of the terms and provisions of this Security Agreement to be
performed by the Pledgor, or to declare all Indebtedness secured hereby at once
due and payable because of the occurrence of any Event of Default.
8. SECURED PARTY EXPENSES. All expenses, reasonable attorneys' fees,
collectors' fees, and reasonable legal expenses, which the Secured Party may
incur in determining, protecting, enforcing or exercising its interests, rights
or remedies hereunder or in connection with the Collateral, shall be paid by the
Pledgor to the Secured Party upon demand, shall constitute a portion of the
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Indebtedness and shall bear interest from the date of demand until paid at the
rate of interest then charged under the Note.
9. NOTICES. Whenever notice is required, including notice of any
intended public or private sale or of the time after which any other authorized
disposition of the Collateral is to be made, reasonable notice shall be deemed
to be ten (10) days. All notices, demands or documents which are required or
permitted to be given or served hereunder shall be in writing and sent by first
class, registered or certified mail, postage prepaid, or by hand delivery, or by
facsimile telecopier, addressed as follows:
To Secured Party at:
BOTTLES PACKAGING, INC.
00000 Xxxxx Xxxxxx, Xxxx "X"
Xxxxxxxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
To Pledgor at:
HAWAIIAN NATURAL WATER COMPANY, INC.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Facsimile No. (000) 000-0000
Any such address may be changed from time to time by serving
notice to all other parties as above provided. Service of such notice or demand
shall be deemed complete on the date of actual delivery or at the expiration of
the fifth (5th) day after the date of mailing, whichever is earlier.
The Pledgor's remedies for the Secured Party's sale or other
disposition of Collateral without required notice shall be limited to those
expressly stated in Section 9-507(1) of the Uniform Commercial Code, aforesaid
(Section 490:9-507(1), Hawaii Revised Statutes).
10. TIME. Time and each of the terms, covenants and conditions hereof
are hereby declared to be of the essence and no indulgence or acceptance by the
Secured Party of delinquent or partial payments constitute a waiver of the
Secured Party's rights or of any provision of this agreement. No waiver of any
existing default shall be deemed to waive any subsequent default.
11. INTEGRATION. This writing is intended by the parties as a final
expression of their agreement and is intended also as a complete and exclusive
statement of the terms of their agreement. No waiver, consent or approval by
the Secured Party or modification or amendment hereof shall be effective unless
in writing signed by the Secured Party.
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12. CAPTIONS AND DESIGNATIONS. The captions of the various sections,
subsections and clauses hereof are for convenience only and shall not control,
limit or otherwise affect the meaning or construction hereof. All collective
designations shall refer to the subjects thereof severally as well as
collectively.
13. PARTIES. This Security Agreement shall inure to the benefit of
BOTTLES PACKAGING, INC., the named "Secured Party," and its successors and
assigns, and inure to the benefit of and shall be binding upon HAWAIIAN NATURAL
WATER COMPANY, INC., the named "Pledgor," and its successors and assigns. The
terms "Secured Party" and "Pledgor" shall include the plural, and shall include
the masculine when the Secured Party or Pledgor, is a male, and shall include
the feminine when the Secured Party or Pledgor is a female, and shall include a
corporation, its successors and assigns, when the Secured Party or Pledgor is a
corporation.
14. FURTHER INSTRUMENTS. The Pledgor upon the reasonable request of
the Secured Party, will execute and deliver such further instruments and do such
further acts as may be necessary and proper to carry out more effectively the
purposes of this Security Agreement and to subject to the lien and security
interest hereof any of the Collateral herein described and any renewals,
additions, substitutions, replacements or betterments thereto.
15. ACKNOWLEDGMENT OF INDEBTEDNESS. Within ten (10) days after
request by the Secured Party in writing, the Pledgor will furnish to the Secured
Party or to any proposed assignee of this Security Agreement a written
statement, duly acknowledged, of the amount due on Indebtedness secured by this
Security Agreement and whether any offsets, counterclaims or defenses exist
against the Indebtedness.
16. RIGHT OF SECURED PARTY TO EXTEND TIME OF PAYMENT, SUBSTITUTE,
RELEASE SECURITY. ETC. Without affecting the liability of any person, including
the Pledgor, for the payment of any Indebtedness secured hereby, or the lien of
this Security Agreement on the Collateral (or the remainder thereof), for the
full amount of any Indebtedness unpaid, the Secured Party may from time to time,
without notice and without affecting or impairing any of its rights under this
Security Agreement: (a) release any person liable for the payment of any of the
Indebtedness; (b) extend the time or otherwise alter the terms of payment of any
of the Indebtedness or accept a renewal note or notes to evidence such an
extension or alteration; (c) accept additional security therefor of any kind,
including (but not limited to) deeds of trust, mortgages and security
agreements; (d) alter, substitute or release any Collateral securing the
Indebtedness; (e) resort for the payment of the Indebtedness secured hereby to
any securities therefor in such order and manner as it may see fit; (f) join in
granting any extension or subordination or other agreement affecting this
Security Agreement or the lien or charge thereof.
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17. LOSS. DESTRUCTION. ETC. OF THE NOTE. The Pledgor will, in the
event that the Note shall be mutilated, destroyed, lost or stolen, deliver to
the Secured Party, in substitution therefor, a new Note containing as the old
Note with a notation thereon of the unpaid principal and accrued unpaid
interest. The Pledgor shall be furnished with satisfactory evidence of the
mutilation, destruction, loss or theft of the Note and also such security or
indemnity as may be reasonably requested by the Pledgor; PROVIDED, HOWEVER, that
if the original Secured Party named herein is then the Secured Party under this
Security Agreement, an unqualified indemnity from the original Secured Party
named herein shall be deemed to be satisfactory security for indemnification.
18. DEFINITIONS. The terms "advances," "costs" and "expenses" shall
include, but shall not be limited to, reasonable attorneys' fees whenever
incurred. The terms "Indebtedness", "loan" and "obligations" shall mean and
include, but shall not be limited to all claims, demands, obligations and
liabilities whatsoever, however arising, whether owing by the Pledgor,
individually or as a partner, or jointly or in common with any others, and
whether absolute or contingent, and whether owing by the Pledgor, as principal
debtor or as accommodation maker or as indorser, liquidated or unliquidated, and
whenever contracted, accrued or payable.
19. GOVERNING LAW. This Security Agreement is governed by and shall
be construed in accordance with the laws of the State of Hawaii. Secured Party
submits to the personal jurisdiction of the courts of the State of Hawaii and
the federal courts of the United States for the District of Hawaii and any
appellate court from any such state or federal court and hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Hawaii court or to the extent
permitted by law, in such federal court. In addition, each party hereby
irrevocably and unconditionally waives, to the fullest extent permitted by law,
(a) any objection which it may now have or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or any related matter in any Hawaii state or federal court, (b) the defense of
an inconvenient forum to the maintenance of any suit, action, or proceeding in
any such court, and (c) trial by jury in any such suit, action or proceeding.
If any provision of this Security Agreement is held to be invalid or
unenforceable, such will not affect the validity or enforceability of the other
provisions of this Security Agreement.
20. SEVERABILITY. If any provision of this Security Agreement is held
to be invalid or unenforceable, the validity and enforceability of the other
provisions of this Security Agreement will remain unaffected.
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IN WITNESS WHEREOF, the parties hereto have executed this Security
Agreement effective as of the day and year first above written.
HAWAIIAN NATURAL WATER COMPANY, INC.
By /s/ Xxxxxx Xxxxxx
--------------------------------
Its President
Pledgor
BOTTLES PACKAGING, INC.
By Xxxx X. Xxxxxxxxx
--------------------------------
Its
Secured Party
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STATE OF HAWAII )
) SS.
CITY AND COUNTY OF HONOLULU )
On this 30th day of September, 1997, before me personally appeared
Xxxxxx Xxxxxx, to me personally known, who being by me duly sworn, did say
that he is the President of HAWAIIAN NATURAL WATER COMPANY, INC., a Hawaii
corporation, and that the instrument was signed and sealed in behalf of the
corporation by authority of its Board of Directors, and the said Xxxxxx
Xxxxxx acknowledged the instrument to be the free act and deed of the
corporation.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Notary Public, State of Hawaii
My commission expires: 6-29-99
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STATE OF CALIFORNIA )
) SS.
COUNTY OF ORANGE )
On this_____day of_________________, 1997, before me personally
appeared______________________, to me personally known, who being by me duly
sworn, did say that he is the______________________of BOTTLES PACKAGING, INC., a
California corporation, and that the instrument was signed and sealed in behalf
of the corporation by authority of its Board of Directors, and the said
_________________________ acknowledged the instrument to be the free act and
deed of the corporation.
--------------------------------------------
Notary Public, State of California
My commission expires: ____________________
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EXHIBIT "A"
MACHINERY
QUANTITY DESCRIPTION
1 3 cavity blow-molding machine complete with 3 molds for 1.5, 1.0
and 0.5 liter bottles
1 Mechanical preform container overturner
1 Bottle ejection device
1 Refrigeration type EGF 18/AE
1 Sterilizing filter PA11-V3A10399 complete with cartridge
1 Coalescent filter PMT11-V3A14185 completes with cartridge
1 Deodorizing filter MPT11-V3A10516 complete with cartridge
1 Drier DFR-43 - 268 m/h @ 40 bar
1 1,000 liter vertical tank - 42 bar
1 Cooling tower PMS 6-65
1 1,500 liter vertical tank - 12 bar
1 High pressure R123 L1 1" PI 50 bar PU 5/50 bar
1 Hydraulic and electric installation
1 Electrical distribution switchboard, main lug only, N1 enclosure,
120/208 V, 3 PH
1 Hydraulic pallet xxxx
1 Electric pallet xxxx
l Electrical wiring for equipment, lights, switches and receptacles
1 Simpli-flex modular conveyor system to convey PET water bottles
