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EXHIBIT 10
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LC SECURITY AGREEMENT
This agreement is made effective January 10, 1997, at Columbus, Ohio,
between Crown NorthCorp, Inc., an Ohio corporation ("Debtor"), having its
principal place of business at 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 and The
Fifth Third Bank of Columbus, an Ohio banking corporation ("Secured Party"),
having its principal place of business at 00 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000, who hereby agree as follows:
Section 1. Grant of Security Interest. To secure the payment of the LC
Note (defined in Section 2 below) and Debtor's obligations under the Loan
Agreement (defined in Section 2 below), Debtor grants to Secured Party a
security interest in, and pledges, assigns, and transfers to Secured Party, all
of Debtor's rights, title, and interests in and to Debtor's certificate of
deposit no. 94186095 (the "Certificate"), including any and all substitutions,
replacements, and renewals thereof, all interest, dividends, proceeds, or
earnings therefrom, and any and all other funds or property which Debtor is now
or may hereafter be entitled to receive therefrom (collectively, the
Collateral").
Section 2. Obligations Secured. This agreement is being made in
connection with the Loan Agreement dated this same date between Debtor and
Secured Party (the "Loan Agreement") and shall secure all obligations of Debtor
to Secured Party, arising under the Loan Agreement, including without
limitation: (a) the LC Note (as defined in the Loan Agreement); (b) all of
Debtor's obligations under the other Loan Documents (as defined in the Loan
Agreement); and (c) any other indebtedness to Secured Party, whether or not any
such obligations are now or hereafter evidenced by promissory notes or other
documents and irrespective of any guarantees or other security now or hereafter
given for any such obligations (collectively, the "Obligations").
Section 3. Possession of the Collateral. Upon execution of this
agreement, Debtor is delivering the Collateral to Secured Party and Secured
Party shall, subject to Section 4, below, retain possession of the Collateral
until such time as all of the Obligations have been satisfied in full.
Section 4. Withdrawals from Certificate. Debtor may withdraw sums from
the Certificate, from time to time, provided that the principal amount of the
Certificate shall at all times exceed or equal the face amount of the LC (as
defined in the Loan Agreement), and provided further that each such withdrawal
by Debtor shall reduce the principal amount of the Certificate by the amount of
the sum withdrawn plus the amount of any applicable prepayment penalty related
to such withdrawal.
Section 5. Representations and Warranties. Debtor represents and
warrants to Secured Party that: (a) no consent or approval of any third party is
necessary for the valid execution, delivery, and performance of this agreement
by Debtor; (b) Debtor has full right, power, and authority to enter into and
perform this agreement, and this agreement constitutes a legally-binding
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obligation of Debtor; and (c) the Collateral is free and clear of all liens,
charges, pledges, claims, security interests or any other encumbrances
(collectively, "Liens").
Section 6. Covenants of Debtor. Debtor shall (a) keep the Collateral
free and clear of all Liens, except for the security interest created hereby and
the lien of The Huntington National Bank ("HNB") which lien will be subordinated
to the Secured Party's lien created by this agreement as contemplated by the
Intercreditor Agreement dated this same date among Debtor, Secured Party, and
HNB; (b) pay all taxes, assessments, or other charges which might result in a
Lien against the Collateral; and (c) not sell, transfer, or assign any right,
title, or interest in or to the Collateral to any person or entity, without the
prior written consent of Secured Party, which consent may be arbitrarily
withheld.
Section 7. Execution of Documents. Debtor shall execute any documents
and take any other actions requested by Secured Party from time to time to
perfect or protect the security interest granted or purported to be granted by
this agreement or to enable Secured Party to exercise or enforce its rights or
remedies under this agreement.
Section 8. Event of Default. Upon the occurrence of an Event of Default
(as defined in the Loan Agreement), Secured Party may exercise, with respect to
the Collateral, all rights and remedies of a secured party upon default under
the Uniform Commercial Code as adopted and set forth in the Ohio Revised Code
(including without limitation Chapter 1309, Ohio Revised Code) and all other
rights and remedies under this agreement or otherwise available to Secured
Party. In any action or proceeding to enforce its rights or remedies under this
agreement, Secured Party shall be entitled forthwith to immediate exclusive
possession and control of the Collateral and to receive directly all payments
due or otherwise being made on any of the Collateral, and, upon ex parte
application by Secured Party to any court of competent jurisdiction without
notice to Debtor, shall be entitled to an order giving such immediate exclusive
possession and control to Secured Party or, if Secured Party so elects, to an
order appointing a receiver for the Collateral and without any requirement of
bond or other security and without any showing that immediate or irreparable
injury, loss, or damage will result if such an order is not issued by that
court. For purposes of this agreement, notice to Debtor prior to the date of
public sale of any Collateral or five days prior to the date after which private
sale or other disposition of any Collateral will be made shall constitute
reasonable notice of any such sale.
Section 9. Notices. All notices and other communications under this
agreement to be made to either Secured Party or Debtor shall be in writing and
shall be deemed given when delivered personally, telecopied (which is confirmed
electronically), or mailed by certified mail (return receipt requested) or sent
by Federal Express, UPS, or other nationally recognized overnight delivery
service for overnight delivery to that party at the address for that party (or
at such other address for such party as such party shall have specified in
notice to the other party):
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(a) If to Secured Party:
The Fifth Third Bank of Columbus
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxx
Telecopy No.: (000) 000-0000
With a copy to Secured Party's Counsel:
Xxxxx & Xxxxxxxxx LLP
00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
(b) If to Debtor:
Crown NorthCorp, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxx
Crown NorthCorp, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Telecopy No.: (000) 000-0000
Section 10. Governing Law. All questions concerning the validity or
meaning of this agreement or relating to the rights and obligations of the
parties with respect to performance under this agreement shall be construed and
resolved under the laws of Ohio.
Section 11. Severability. The intention of the parties to this
agreement is to comply fully with all laws and public policies, and this
agreement shall be construed consistently with all laws and public policies to
the extent possible. If and to the extent that any court of competent
jurisdiction determines it is impossible to construe any provision of this
agreement consistently with any law or public policy and consequently holds that
provision to be invalid, such holding shall in no way affect the validity of the
other provisions of this agreement, which shall remain in full force and effect.
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Section 12. Venue. The parties to this agreement hereby designate the
Court of Common Pleas of Franklin County, Ohio, as a court of proper
jurisdiction and exclusive venue for any actions or proceedings relating to this
agreement; hereby irrevocably consent to such designation, jurisdiction, and
venue; and hereby waive any objections or defenses relating to jurisdiction or
venue with respect to any action or proceeding initiated in the Court of Common
Pleas of Franklin County, Ohio.
Section 13. Nonwaiver. No failure by either party to insist upon
compliance with any term of this agreement or to exercise any option, enforce
any right, or seek any remedy upon any default of either party shall affect or
constitute a waiver of the first party's right to insist upon such strict
compliance, exercise that option, enforce that right, or seek that remedy with
respect to that default or any prior, contemporaneous, or subsequent default;
nor shall any custom or practice of the parties at variance with any provision
of this agreement affect, or constitute a waiver of, either party's right to
demand strict compliance with the provisions of this agreement.
Section 14. No Third Party Benefit. This agreement is intended for
the exclusive benefit of the parties to this agreement and their respective
heirs, successors, and assigns, and nothing contained in this agreement shall be
construed as creating any rights or benefits in or to any third party.
Section 15. Jury Trial Waiver. Debtor, after consulting or having the
opportunity to consult with legal counsel, knowingly, voluntarily and
intentionally waives any right it may have to a trial by jury in any action or
proceeding based upon or arising out of this agreement or any of the Loan
Documents or any course of conduct, dealings, statements, whether oral or
written, or actions of either party. Debtor shall not seek to consolidate, by
counterclaim or otherwise, any action in which a jury trial has been waived with
any other action in which a jury trial cannot be or has not been waived.
Section 16. Complete Agreement. This agreement (including any
exhibits and any documents incorporated into this agreement by reference)
contains the entire agreement among the parties and supersedes any prior
agreements, negotiations, representations, or discussions among them with
respect to the subject matter of this agreement. No additions or other changes
to this agreement shall be binding upon either party unless made in writing and
signed by both parties.
Section 17. Counterparts. This agreement may be executed in multiple
counterparts, and all such executed counterparts shall constitute one original
agreement, binding on all of the parties, whether or not both of the parties
have executed the same counterparts and whether or not the signature pages from
different counterparts have been combined, and the signature of any party to any
counterpart shall be deemed to be that party's signature to any other
counterpart and may be appended to any other counterpart.
Section 18. Captions. The captions of the various sections of this
agreement are not part of the context of this agreement, but are only labels to
assist in locating those sections, and shall be ignored in construing this
agreement.
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Section 19. Survival. All agreements, obligations, warranties, and
representations under this agreement shall survive any modifications made by
either party to this agreement.
Section 20. Genders and Numbers. When permitted by the context, each
pronoun used in this agreement includes the same pronoun in other genders or
numbers and each noun used in this agreement includes the same noun in other
numbers.
Section 21. Successors. This agreement shall be binding upon, inure
to the benefit of, and be enforceable by and against the respective heirs,
personal representatives, successors and assigns of each party to this
agreement.
Section 22. Cumulative Effect. This agreement is intended as
additional security to Secured Party and does not supersede, waive, or otherwise
affect any other security interests, guarantees, or other agreements between
Secured Party and Debtor.
CROWN NORTHCORP, INC. THE FIFTH THIRD BANK OF
COLUMBUS
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxx
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Print Name: Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxx
---------------------- Vice President
Its: Secretary
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