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EXHIBIT 10.22
[COMERICA LOGO]
SECURITY AGREEMENT
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As of November 13, 2000, for value received, the undersigned ("Debtor") grants
to Comerica Bank-California ("Bank"), a California banking corporation, a
continuing security interest in the Collateral (as defined below) to secure
payment when due, whether by stated maturity, demand acceleration or otherwise,
of all existing and future indebtedness ("Indebtedness") to the Bank of Bay
Area Multimedia, Inc. ("Borrower") and/or Debtor. Indebtedness includes without
limit any and all obligations or liabilities of the Borrower and/or Debtor to
the Bank, whether absolute or contingent, direct or indirect, voluntary or
involuntary, liquidated or unliquidated, joint or several, known or unknown;
any and all obligations or liabilities for which the Borrower and/or Debtor
would otherwise be liable to the Bank were it not for the invalidity or
unenforceability of them by reason of any bankruptcy, insolvency or other law,
or for any other reason; any and all amendments, modifications, renewals and/or
extensions of any of the above; all costs incurred by Bank in establishing,
determining, continuing, or defending the validity or priority of its security
interest, or in pursuing its rights and remedies under this Agreement or under
any other agreement between Bank and Borrower and/or Debtor or in connection
with any proceeding involving Bank as a result of any financial accommodation
to Borrower and/or Debtor; and all other costs of collecting Indebtedness,
including without limit attorney fees. Any reference in this Agreement to
attorney fees shall be deemed a reference to reasonable fees, costs, and
expenses of both in-house and outside counsel and paralegals, whether or not a
suit or action is instituted and to court costs if a suit or action is
instituted, and whether attorney fees or court costs are incurred at the trial
court level, on appeal, in a bankruptcy, administrative or probate proceeding
or otherwise.
1. Collateral shall mean all of the following property Debtor now or later
owns or has an interest in, wherever located:
- specific items listed below and/or on attached Schedule A, if any,
is/are also included in Collateral: Money Market account #8000214836
dated October 17, 2000 in the current amount of $500,000.00 in the
name of Xxxxxxx Xxxxxx Xxxxxxxx and any and all subsequent renewals
thereof.
- all goods, instruments, documents, policies and certificates of
insurance, deposits, money or other property (except real property
which is not a fixture) which are now or later in possession of Bank,
or as to which Bank now or later controls possession by documents or
otherwise, and
- all additions, attachments, accessions, parts, replacements,
substitutions, renewals, interest, dividends, distributions, rights of
any kind (including but not limited to stock splits, stock rights,
voting and preferential rights), products, and proceeds of or
pertaining to the above including, without limit, cash or other
property which were proceeds and are recovered by a bankruptcy trustee
or otherwise as a preferential transfer by Debtor.
2. Warranties, Covenants and Agreements. Debtor warrants, covenants and
agrees as follows:
2.1 Debtor shall furnish to Bank, in form and at intervals as Bank may
request, any information Bank may reasonably request and allow Bank to
examine, inspect, and copy any of Debtor's books and records. Debtor
shall, at the request of Bank, xxxx its records and the Collateral to
clearly indicate the security interest of Bank under this Agreement.
2.2 At the time any Collateral becomes, or is represented to be, subject
to a security interest in favor of Bank, Debtor shall be deemed to
have warranted that (a) Debtor is the lawful owner of the Collateral
and has the right and authority to subject it to a security interest
granted to Bank; (b) none of the Collateral is subject to any security
interest other than that in favor of Bank and there are no financing
statements on file, other than in favor of Bank; and (c) Debtor
acquired its rights in the Collateral in the ordinary course of its
business.
2.3 Debtor will keep the Collateral free at all times from all claims,
liens, security interests and encumbrances other than those in favor
of Bank. Debtor will not, without the prior written consent of Bank,
sell, transfer or lease, or permit to be sold, transferred or leased,
any or all of the Collateral, except (where Inventory is pledged as
Collateral) for Inventory in the ordinary course of its business and
will not return any Inventory to its supplier. Bank or its
representatives may at all reasonable times inspect the Collateral and
may enter upon all premises where the Collateral is kept or might be
located.
2.4 Debtor will do all acts and will execute or cause to be executed all
writings requested by Bank to establish, maintain and continue a
perfected and first security interest of Bank in the Collateral.
Debtor agrees that Bank has no obligation to acquire or perfect any
lien on or security interest in any asset(s), whether realty or
personalty, to secure payment of the Indebtedness, and Debtor is not
relying upon assets in which the Bank may have a lien or security
interest for payment of the Indebtedness.
2.5 Debtor will pay within the time that they can be paid without
interest or penalty all taxes, assessments and similar charges which
at any time are or may become a lien, charge or encumbrance upon any
Collateral, except to the extent contested in good faith and bonded
in a manner satisfactory to Bank. If Debtor fails to pay any of these
taxes, assessments, or other charges in the time provided above, Bank
has the option (but not the obligation) to do so and Debtor agrees to
repay all amounts so expended by Bank immediately upon demand,
together with interest at the highest lawful default rate which could
be charged by Bank on any Indebtedness.
2.6 Debtor will keep the Collateral in good condition and will protect it
from loss, damage, or deterioration from any cause. Debtor has and
will maintain at all times (a) with respect to the Collateral,
insurance under an "all risk" policy against fire and other risks
customarily insured against, and (b) public liability insurance and
other insurance as may be required by law or reasonably required by
Bank, all of which insurance shall be in amount, form and content,
and written by companies as may be satisfactory to Bank, containing a
lender's loss payable endorsement acceptable to Bank. Debtor will
deliver to Bank immediately upon demand evidence satisfactory to Bank
that the required insurance has been procured. If Debtor fails to
maintain satisfactory insurance, Bank has the option (but not the
obligation) to do so and Debtor agrees to repay all amounts so
expended by Bank immediately upon demand, together with interest at
the highest lawful default rate which could be charged by Bank on any
Indebtedness.
2.7 If Accounts Receivable are pledged as Collateral under this
Agreement, then on each occasion on which Debtor evidences to Bank
the account balances on and the nature and extent of the Accounts
Receivable, Debtor shall be deemed to have warranted that except as
otherwise indicated (a) each of those Account Receivable is valid and
enforceable without performance by Debtor of any act; (b) each of
those account balances are in fact owing, (c) there are no setoffs,
recoupments, credits, contra accounts, counterclaims or defenses
against any of those Accounts Receivable, (d) as to any Accounts
Receivable represented by a note, trade acceptance, draft or other
instrument or by any chattel paper or document, the same have been
endorsed and/or delivered by Debtor to Bank, (e) Debtor has not
received with respect to any Account Receivable, any notice of the
death of the related account debtor, nor of the distribution,
liquidation, termination of existence, insolvency, business failure,
appointment of a receiver for, assignment for the benefit of
creditors by, or filing of a petition in bankruptcy by or against,
the account debtor, and (f) as to each Account Receivable, the
account debtor is not an affiliate of Debtor, the United States of
America or any department, agency or instrumentality of it, or a
citizen or resident of any jurisdiction outside of the United States.
Debtor will do all acts and will execute all writings requested by
Bank to perform, enforce performance of, and collect all Accounts
Receivable. Debtor shall neither make nor permit any modification,
compromise or substitution for any Account Receivable without the
prior written consent of Bank. Debtor shall, at Bank's request,
arrange for verification of Accounts Receivable directly with
account debtors or by any other methods acceptable to Bank.
2.8 Debtor at all times shall be in strict compliance with all applicable
laws, including without limit any laws, ordinances, directives,
orders, statutes, or regulations an object of which is to regulate or
improve health, safety, or the environment ("Environmental Laws").
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2.9 If marketable securities are pledged as Collateral under this
Agreement and if at any time the outstanding principal balance of
the Indebtedness exceeds N/A of the value of the Collateral, as such
value is determined from time to time by Bank (herein called the
"Margin Requirement"), Debtor shall immediately pay or cause to be
paid to Bank an amount sufficient to reduce the Indebtedness such
that the remaining principal outstanding thereunder is equal to or
less than the Margin Requirement. Bank shall apply payments made
under this paragraph in payment of the Indebtedness in such order
and manner of application as Bank in its sole discretion elects. In
the alternative, Debtor may provide or cause to be provided to Bank
additional collateral in the form of cash or other property
acceptable to Bank and with a value, as determined by Bank, that
when added to the Collateral will constitute compliance with the
Margin Requirement.
2.10 If Bank, acting in its sole discretion, redelivers Collateral to
Debtor or Debtor's designee for the purpose of (a) the ultimate sale
or exchange thereof; or (b) presentation, collection, renewal, or
registration of transfer thereof; or (c) loading, unloading,
storing, shipping, transshipping, manufacturing, processing or
otherwise dealing with it preliminary to sale or exchange; such
redelivery shall be in trust for the benefit of Bank and shall not
constitute a release of Bank's security interest in it or in the
proceeds or products of it unless Bank specifically so agrees in
writing. If Debtor requests any such redelivery, Debtor will deliver
with such request a duly executed financing statement in form and
substance satisfactory to Bank. Any proceeds of Collateral coming
into Debtor's possession as a result of any such redelivery shall be
held in trust for Bank and immediately delivered to Bank for
application on the Indebtedness. Bank may (in its sole discretion)
delivery any or all of the Collateral to Debtor, and such delivery
by Bank shall discharge Bank from all liability or responsibility
for such Collateral. Bank, at its option, may require delivery of
any Collateral to Bank at any time with such endorsements or
assignments of the Collateral as Bank may request.
2.11 At any time and without notice, Bank may, as to Collateral other
than Equipment, Fixtures or Inventory, (a) cause any or all of such
Collateral to be transferred to its name or to the name of its
nominees; (b) receive or collect by legal proceedings or otherwise
all dividends, interest, principal payments and other sums and all
other distributions at any time payable or receivable on account of
such Collateral, and hold the same as Collateral, or apply the same
to the Indebtedness, the manner and distribution of the application
to be in the sole discretion of Bank; (c) enter into any extension,
subordination, reorganization, deposit, merger or consolidation
agreement or any other agreement relating to or affecting such
Collateral, and deposit or surrender control of such Collateral, and
accept other property in exchange for such Collateral and hold or
apply the property or money so received pursuant to this Agreement.
2.12 Bank may assign any of the Indebtedness and deliver any or all of
the Collateral to its assignee, who then shall have with respect to
Collateral so delivered all the rights and powers of Bank under this
Agreement, and after that Bank shall be fully discharged from all
liability and responsibility with respect to Collateral so
delivered.
2.13 Debtor delivers this Agreement based solely on Debtor's independent
investigation of (or decision not to investigate) the financial
condition of Borrower and is not relying on any information
furnished by Bank. Debtor assumes full responsibility for obtaining
any further information concerning the Borrower's financial
condition, the status of the Indebtedness or any other matter which
the undersigned may deem necessary or appropriate now or later.
Debtor waives any duty on the part of Bank, and agrees that Debtor
is not relying upon nor expecting Bank to disclose to Debtor any
fact now or later known by Bank, whether relating to the operations
or condition of Borrower, the existence, liabilities or financial
condition of any guarantor of the Indebtedness, the occurrence of
any default with respect to the Indebtedness, or otherwise,
notwithstanding any effect such fact may have upon Debtor's risk or
Debtor's rights against Borrower. Debtor knowingly accepts the full
range of risk encompassed in this Agreement, which risk includes
without limit the possibility that Borrower may incur Indebtedness
to Bank after the financial condition of Borrower, or Borrower's
ability to pay debts as they mature, has deteriorated.
2.14 Debtor shall defend, indemnify and hold harmless Bank, its
employees, agents, shareholders, affiliates, officers, and directors
from and against any and all claims, damages, fines, expenses,
liabilities or causes of action of whatever kind, including without
limit consultant fees, legal expenses, and attorney fees, suffered
by any of them as a direct or indirect result of any actual or
asserted violation of any law, including, without limit,
Environmental Laws, or of any remediation relating to any property
required by any law, including without limit Environmental Laws.
2.15 Debtor agrees that no security or guarantee now or later held by
Bank for the payment of any Indebtedness, whether from Borrower, any
guarantor, or otherwise, and whether in the nature of a security
interest, pledge, lien, assignment, setoff, suretyship, guaranty,
indemnity, insurance or otherwise, shall affect in any manner the
unconditional pledge of Debtor under this Agreement, and Bank, at
its sole discretion, without notice to the undersigned, may release,
exchange, modify, enforce and otherwise deal with any security or
guaranty without affecting in any manner the unconditional pledge of
Debtor under this Agreement, Debtor acknowledges and agrees that
Bank has no obligation to acquire or perfect any lien on or security
interest in any assets, whether realty or personalty, or to obtain
any guaranty to secure payment of the Indebtedness, and Debtor is
not relying upon any guaranty which Bank has or may have or assets
in which Bank has or may have a lien or security interest for
payment of the Indebtedness.
2.16 Debtor may terminate their pledge under this Agreement as to future
Indebtedness (except as provided below) by (and only by) delivering
written notice of termination to an officer of Bank and receiving
from an officer of Bank written acknowledgment of delivery;
provided, the termination shall not be effective until the opening
of business on the fifth (5th) day following written acknowledgement
of delivery. Any termination shall not affect in any way Bank's
rights under this Agreement as to any Indebtedness existing at the
effective date of termination or any Indebtedness created after that
pursuant to any commitment or agreement of Bank or pursuant to any
Borrower loan with Bank existing at the effective date of
termination (whether advances or readvances by Bank are optional or
obligatory), or any modifications, extensions or renewals of any of
this Indebtedness, whether in whole or in part, and as to all of
this Indebtedness and modifications, extensions or renewals of it,
this Agreement shall continue effective until the same shall have
been fully paid. Debtor shall indemnify Bank against all claims,
damages, costs and expenses, including without limit attorney fees,
incurred by Bank in connection with any suit, claim or action
against Bank arising out of any modification or termination of a
Borrower loan or any refusal by Bank to extend additional credit in
connection with the termination of this Agreement.
2.17 Debtor agrees to reimburse Bank upon demand for all costs and
expenses (including, without limit, attorneys fees) incurred in
enforcing any of the duties or obligations of Debtor under this
Agreement or in establishing, determining, continuing or defending
the validity or priority of Bank's security interest under this
Agreement.
3. Collection of Proceeds.
3.1 Debtor agrees to collect and enforce payment of all Collateral until
Bank shall direct Debtor to the contrary. Immediately upon notice to
Debtor by Bank and at all times after that, Debtor agrees to fully
and promptly cooperate and assist Bank in the collection and
enforcement of all Collateral and to hold in trust for Bank all
payments received in connection with Collateral and from the sale,
lease or other disposition of any Collateral, all rights by way or
suretyship or guaranty and all rights in the nature of a lien or
security interest which Debtor now or later has regarding
Collateral. Immediately upon and after such notice, Debtor agrees to
(a) endorse to Bank and immediately deliver to Bank all payments
received on Collateral or from the sale, lease or other disposition
of any Collateral or arising from any other rights or interests of
Debtor in the Collateral, in the form received by Debtor without
commingling with any other funds, and (b) immediately deliver to
Bank all property in Debtor's possession or later coming into
Debtor's possession through enforcement of Debtor's rights or
interests in the Collateral. Debtor irrevocably authorizes Bank or
any Bank employee or agent to endorse the name of Debtor upon any
checks or other items which are received in payment for any
Collateral, and to do any and all things necessary in order to
reduce these items to money. Bank shall have no duty as to the
collection or protection of Collateral or the proceeds of it, nor as
to the preservation of any related rights, beyond the use of
reasonable care in the custody and preservation of Collateral in the
possession of Bank. Debtor agrees to take all steps necessary to
preserve rights against prior parties with respect to the
Collateral. Nothing in this
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Section 3.1 shall be deemed a consent by Bank to any sale, lease or
other disposition of any Collateral.
3.2 If Accounts Receivable are pledged as Collateral, this Section 3.2
shall be applicable and Debtor agrees that immediately upon Bank's
request (whether or not any Event of Default exists) the indebtedness
shall be on a "remittance basis" as follows: Debtor shall at its sole
expense establish and maintain (and Bank, at Bank's option, may
establish and maintain at Debtor's expense); (a) a United States Post
Office lock box (the "Lock Box"), to which Bank shall have exclusive
access and control. Debtor expressly authorizes Bank, from time to
time, to remove contents from the Lock Box, for disposition in
accordance with this Agreement. Debtor agrees to notify all account
debtors and other parties obligated to Debtor that all payments made
to Debtor (other than payments by electronic funds transfer) shall be
remitted, for the credit of Debtor, to the Lock Box, and Debtor shall
include a like statement on all invoices; and (b) a non-interest
bearing deposit account with Bank which shall be titled as designated
by Bank (the "Cash Collateral Account") to which Bank shall have
exclusive access and control. Debtor agrees to notify all account
debtors and other parties obligated to Debtor that all payments made
to Debtor by electronic funds transfer shall be remitted to the Cash
Collateral Account, and Debtor, at Bank's request, shall include a
like statement on all invoices. Debtor shall execute all documents and
authorizations as required by Bank to establish and maintain the Lock
Box and the Cash Collateral Account.
3.3 If Accounts Receivable are pledged as Collateral, this Section 3.3
shall be applicable, and all items or amounts which are remitted to
the Lock Box, to the Cash Collateral Account, or otherwise delivered
by or for the benefit of Debtor to Bank on account of partial or full
payment of, or with respect to, any Collateral shall, at Bank's
option, (i) be applied to the payment of the Indebtedness, whether
then due or not, in such order or at such time of application as Bank
may determine in its sole discretion, or, (ii) be deposited to the
Cash Collateral Account. Debtor agrees that Bank shall not be liable
for any loss or damage which Debtor may suffer as a result of Bank's
processing of items or its exercise of any other rights or remedies
under this Agreement, including without limitation indirect, special
or consequential damages, loss of revenues or profits, or any claim,
demand or action by any third party arising out of or in connection
with the processing of items or the exercise of any other rights or
remedies under this Agreement. Debtor agrees to indemnify and hold
Bank harmless from and against all such third party claims, demands or
actions, and all related expenses or liabilities, including, without
limitation, attorney fees.
4. Defaults, Enforcement and Application of Proceeds
4.1 Upon the occurrence of any of the following events (each an "Event of
Default"), Debtor shall be in default under this Agreement:
(a) Any failure to pay the Indebtedness or any other indebtedness
when due, or such portion of it as may be due, by acceleration or
otherwise; or
(b) Any failure or neglect to comply with, or breach of or default
under, any term of this Agreement, or any other agreement or
commitment between Borrower, Debtor, or any guarantor of any of
the Indebtedness ("Guarantor") and Bank; or
(c) Any warranty, representation, financial statement, or other
information made, given or furnished to Bank by or on behalf of
Borrower, Debtor, or any Guarantor shall be, or shall prove to
have been, false or materially misleading when made, given, or
furnished; or
(d) Any loss, theft, substantial damage or destruction to or of any
Collateral, or the issuance or filing of any attachment, levy,
garnishment or the commencement of any proceeding in connection
with any Collateral or of any other judicial process of, upon or
in respect of Borrower, Debtor, any Guarantor, or any Collateral;
or
(e) Sale or other disposition by Borrower, Debtor, or any Guarantor
of any substantial portion of its assets or property or voluntary
suspension of the transaction of business by Borrower, Debtor, or
any Guarantor, or death, dissolution, termination of existence,
merger, consolidation, insolvency, business failure, or
assignment for the benefit of creditors of or by Borrower,
Debtor, or any Guarantor; or commencement of any proceedings
under any state or federal bankruptcy or insolvency laws or laws
for the relief of debtors by or against Borrower, Debtor, or any
Guarantor; or the appointment of a receiver, trustee, court
appointee, sequestrator or otherwise, for all or any part of the
property of Borrower, Debtor, or any Guarantor; or
(f) Bank deems the margin of Collateral insufficient or itself
insecure, in good faith believing that the prospect of payment of
the Indebtedness or performance of this Agreement is impaired or
shall fear deterioration, removal, or waste of Collateral.
4.2 Upon the occurrence of any Event of Default, Bank may at its
discretion and without prior notice to Debtor declare any or all of
the Indebtedness to be immediately due and payable, and shall have and
may exercise any one or more of the following rights and remedies:
(a) Exercise all the rights and remedies upon default, in foreclosure
and otherwise, available to secured parties under the provisions
of the Uniform Commercial Code and other applicable law;
(b) Institute legal proceedings to foreclose upon the lien and
security interest granted by this Agreement, to recover judgment
for all amounts then due and owing as Indebtedness, and to
collect the same out of any Collateral or the proceeds of any
sale of it;
(c) Institute legal proceedings for the sale, under the judgment or
decree of any court of competent jurisdiction, of any or all
Collateral; and/or
(d) Personally or by agents, attorneys, or appointment of a receiver,
enter upon any premises where Collateral may then be located, and
take possession of all or any of it and/or render it unusable;
and without being responsible for loss or damage to such
Collateral, hold, operate, sell, lease, or dispose of all or any
Collateral at one or more public or private sales, leasings, or
other dispositions, at places and times and on terms and
conditions as Bank may deem fit, without any previous demand or
advertisement; and except as provided in this Agreement, all
notice of sale, lease or other disposition, and advertisement,
and other notice or demand, any right or equity of redemption,
and any obligation of a prospective purchaser or lessee to
inquire as to the power and authority of Bank to sell, lease, or
otherwise dispose of the Collateral or as to the application by
Bank of the proceeds of sale or otherwise, which would otherwise
be required by, or available to Debtor under, applicable law are
expressly waived by Debtor to the fullest extent permitted.
At any sale pursuant to this Section 4.2, whether under the power
of sale, by virtue of judicial proceedings or otherwise, it shall
not be necessary for Bank or a public officer under order of a
court to have present physical or constructive possession of
Collateral to be sold. The recitals contained in any conveyances
and receipts made and given by Bank or the public officer to any
purchaser at any sale made pursuant to this Agreement shall, to
the extent permitted by applicable law, conclusively establish
the truth and accuracy of the matters stated (including, without
limit, as to the amounts of the principal of and interest on the
Indebtedness, the accrual and nonpayment of it and advertisement
and conduct of the sale); and all prerequisites to the sale shall
be presumed to have been satisfied and performed. Upon any sale
of any Collateral, the receipt of the officer making the sale
under judicial proceedings or of Bank shall be sufficient
discharge to the purchaser for the purchase money, and the
purchaser shall not be obligated to see to the application of the
money. Any sale of any Collateral under this Agreement shall be a
perpetual bar against Debtor with respect to that Collateral.
4.3 Debtor shall at the request of Bank, notify the account debtors or
obligors of Bank's security interest in the Collateral and direct
payment of it to Bank. Bank may, itself, upon the occurrence of any
Event of Default so notify and direct any account debtor or obligor,
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4.4 The proceeds of any sale or other disposition of Collateral authorized
by this Agreement shall be applied by Bank first upon all expenses
authorized by the Uniform Commercial Code and all reasonable attorney
fees and legal expenses incurred by Bank; the balance of the proceeds
of the sale or other disposition shall be applied in the payment of
the Indebtedness, first to interest, then to principal, then to
remaining Indebtedness and the surplus, if any, shall be paid over to
Debtor or to such other person(s) as may be entitled to it under
applicable law.
4.5 Nothing in this Agreement is intended, nor shall it be construed, to
preclude Bank from pursuing any other remedy provided by law for the
collection of the Indebtedness or for the recovery of any other sum
to which Bank may be entitled for the breach of this Agreement by
Debtor. Nothing in this Agreement shall reduce or release in any way
any rights or security interests of Bank contained in any existing
agreement between Borrower, Debtor, or any Guarantor and Bank.
4.6 No waiver of default or consent to any act by Debtor shall be
effective unless in writing and signed by an authorized officer of
Bank. No waiver of any default or forbearance on the part of Bank
in enforcing any of its rights under this Agreement shall operate as
a waiver of any other default or of the same default on a future
occasion or of an rights.
4.7 Debtor irrevocably appoints Bank or any agent of Bank (which
appointment is coupled with an interest) the true and lawful attorney
of Debtor (with full power of substitution) in the name, place and
stead of, and at the expense of, Debtor:
(a) to demand, receive, xxx for, and give receipts or acquittances
for any moneys due or to become due on any Collateral and to
endorse any item representing any payment on or proceeds of the
Collateral;
(b) to execute and file in the name of and on behalf of Debtor all
financing statements or other filings deemed necessary or
desirable by Bank to evidence, perfect, or continue the security
interests granted in this Agreement; and
(c) to do and perform any act on behalf of Debtor permitted or
required under this Agreement.
4.8 Upon the occurrence of an Event of Default, Debtor also agrees, upon
request of Bank, to assemble the Collateral and make it available to
Bank at any place designated by Bank which is reasonably convenient
to Bank and Debtor.
5. MISCELLANEOUS.
5.1 Until Bank is advised in writing by Debtor to the contrary, all
notices, requests and demands required under this Agreement or by law
shall be given to, or made upon, Debtor at the first address
indicated in Section 5.15 below.
5.2 Debtor will give bank not less than 90 days prior written notice of
all contemplated changes in Debtor's name, chief executive office
location, and/or location of any Collateral, but the giving of this
notice shall not cure any Event of Default caused by this change.
5.3 Bank assumes no duty of performance or other responsibility under any
contracts contained within the Collateral.
5.4 Bank has the right to sell, assign, transfer, negotiate or grant
participations or any interest in, any or all of the Indebtedness and
any related obligations, including without limit this Agreement. In
connection with the above, but without limiting its ability to make
other disclosures to the full extent allowable, Bank may disclose all
documents and information which Bank now or later has relating to
Debtor, the Indebtedness or this Agreement, however obtained. Debtor
further agrees that Bank may provide information relating to this
Agreement or relating to Debtor to the Bank's parent, affiliates,
subsidiaries, and service providers.
5.5 "Intentionally Deleted."
5.6 Debtor waives any right to require the Bank to: (a) proceed against
any person or property; (b) give notice of the terms, time and place
of any public or private sale of personal property security held from
Borrower or any other person, or otherwise comply with the provisions
of Section 9-504 of the Uniform Commercial Code; or (c) pursue any
other remedy in the Bank's power. Debtor waives notice of acceptance
of this Agreement and presentment, demand, protest, notice of protest,
dishonor, notice of dishonor, notice of default, notice of intent to
accelerate or demand payment of any Indebtedness, any and all other
notices to which the undersigned might otherwise be entitled, and
diligence in collecting any Indebtedness, and agree(s) that the Bank
may, once or any number of times, modify the terms of any
Indebtedness, compromise, extend, increase, accelerate, renew or
forbear to enforce payment of any or all Indebtedness, or permit
Borrower to incur additional Indebtedness, all without notice to
Debtor and without affecting in any manner the unconditional
obligation of Debtor under this Agreement. Debtor unconditionally and
irrevocably waives each and every defense and setoff of any nature
which, under principles of guaranty or otherwise, would operate to
impair or diminish in any way the obligation of Debtor under this
Agreement, and acknowledges that such waiver is by this reference
incorporated into each security agreement, collateral assignment,
pledge and/or other document from Debtor now or later securing the
Indebtedness, and acknowledges that as of the date of this Agreement
no such defense or setoff exists.
5.7 Debtor waives any and all rights (whether by subrogation, indemnity,
reimbursement, or otherwise) to recover from Borrower any amounts
paid or the value of any Collateral given by Debtor pursuant to this
Agreement.
5.8 In the event that applicable law shall obligate Bank to give prior
notice to Debtor of any action to be taken under this Agreement,
Debtor agrees that a written notice given to Debtor at least five days
before the date of the act shall be reasonable notice of the act
and, specifically, reasonable notification of the time and place of
any public sale or of the time after which any private sale, lease,
or other disposition is to be made, unless a shorter notice period is
reasonable under the circumstances. A notice shall be deemed to be
given under this Agreement when delivered to Debtor or when placed in
an envelope addressed to Debtor and deposited, with postage prepaid,
in a post office or official depository under the exclusive care and
custody of the United States Postal Service or delivered to an
overnight courier. The mailing shall be by overnight courier,
certified, or first class mail.
5.9 Notwithstanding any prior revocation, termination, surrender, or
discharge of this Agreement in whole or in part, the effectiveness of
this Agreement shall automatically continue or be reinstated in the
event that any payment received or credit given by Bank in respect of
the Indebtedness is returned, disgorged, or rescinded under any
applicable law, including, without limitation, bankruptcy or
insolvency laws, in which case this Agreement, shall be enforceable
against Debtor as if the returned, disgorged, or rescinded payment or
credit had not been received or given by Bank, and whether or not Bank
relied upon this payment or credit or changed its position as a
consequence of it, in the event of continuation or reinstatement of
this Agreement, Debtor agrees upon demand by Bank to execute and
deliver to Bank those documents which Bank determines are appropriate
to further evidence (in the public records and otherwise) this
continuation or reinstatement, although the failure of Debtor to do so
shall not affect in any way the reinstatement or continuation.
5.10 This Agreement and all the rights and remedies of Bank under this
Agreement shall inure to the benefit of Bank's successors and assigns
and to any other holder who derives from Bank title to or an interest
in the Indebtedness or any portion of it, and shall bind Debtor and
the heirs, legal representatives, successors, and assigns of Debtor.
Nothing in this Section 5.10 is deemed a consent by Bank to any
assignment by Debtor.
5.11 If there is more than one Debtor, all undertakings, warranties and
covenants made by Debtor and all rights, powers and authorities given
to of conferred upon Bank are made or given jointly and severally.
5.12 Except as otherwise provided in this Agreement, all terms in this
Agreement have the meanings assigned to them in Division 9 (or,
absent definition in Division 9, in any other Division) of the
Uniform Commercial Code, as of the date of this Agreement. "Uniform
Commercial Code" means the California Uniform Commercial Code; as
amended.
5
5.13 No single or partial exercise, or delay in the exercise, of any right
or power under this Agreement, shall preclude other or further
exercise of the rights and powers under this Agreement. The
unenforceability of any provision of this Agreement shall not affect
the enforceability of the remainder of this Agreement. This Agreement
constitutes the entire agreement of Debtor and Bank with respect to
the subject matter of this Agreement. No amendment or modification of
this Agreement shall be effective unless the same shall be in
writing and signed by Debtor and an authorized officer of Bank. This
Agreement shall be governed by and construed in accordance with the
internal laws of the State of California, without regard to conflict
of laws principles.
5.14 To the extent that any of the Indebtedness is payable upon demand,
nothing contained in this Agreement shall modify the terms and
conditions of that Indebtedness nor shall anything contained in this
Agreement preclude that from making deemed, without notice and with
or without reason, for immediate payment of any or all of that
Indebtedness at any time(s), whether or not an Event of Default has
occurred.
5.15 Debtor's chief executive office is located and shall be maintained at
000 X. Xxxxx Xxxxx Xx., Xxx 000
-------------------------------
STREET ADDRESS
Xxx Xxxx XX 00000
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CITY STATE ZIP CODE COUNTY
If Collateral is located at other than the chief executive office,
such Collateral is located and shall be maintained at
---------------------------------------------------------------------
STREET ADDRESS
---------------------------------------------------------------------
CITY STATE ZIP CODE COUNTY
Collateral shall be maintained only at the locations identified in
this Section 3.75.
5.16 A carbon, photographic or other reproduction of this Agreement shall
be sufficient as a financing statement under the Uniform Commercial
Code and may be filed by Bank in any filing office.
5.17 This Agreement shall be terminated only by the filing of a
termination statement in accordance with the applicable provisions of
the Uniform Commercial Code, but the obligations contained in Section
2.14 of this Agreement shall survive termination.
4. DEBTOR AND BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER
CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT
WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE
PERFORMANCE OR ENFORCEABILITY OF, OR IN ANY WAY RELATED TO, THIS
AGREEMENT OR THE INDEBTEDNESS.
7. Special Provisions Applicable to this Agreement. (none, if left blank)
DEBTOR: XXXXXXX XXXXXX XXXXXXXX
------------------------------------
DEBTOR NAME TITLE/PRINTED
By: /s/ XXXXXXX XXXXXX XXXXXXXX
------------------------------------
SIGNATURE OF Xxxxxxx Xxxxxx Xxxxxxxx
Its:
---------------------------------
TITLE (if applicable)
By:
------------------------------------
SIGNATURE OF
Its:
---------------------------------
TITLE (if applicable)
By:
------------------------------------
SIGNATURE OF
Its:
---------------------------------
TITLE (if applicable)
By:
------------------------------------
SIGNATURE OF
Its:
---------------------------------
TITLE (if applicable)
Borrower(s):
Bay Area Media, Inc.
