LEGAL CHARGE AND SECURITY AGREEMENT
(All Asset)
AGREEMENT entered into at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx this 25th day of November 1996 between BPI Packaging (UK) Limited,
a Private Limited Company incorporated under the United Kingdom Companies Act of
1985 with a registered office situated at 000 Xxxxxxxxx, Xxxxxx, Xxxxxxx X0X0XX
(hereinafter called the "Guarantor") and Foothill Capital Corporation, a
California corporation with a place of business at 0000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx (the "Lender"). The tangible personal property which is
the subject matter of this Agreement is and will be kept at the Guarantor's
address indicated above.
1 . Grant of Security Interest. In consideration of the Lender's
extending financial accommodations to the Guarantor, through loans made to BPI
Packaging Technologies, Inc. ("BPI") under a Loan and Security Agreement (the
"Loan Agreement") dated November __,1996, and to secure Guarantor's obligations
pursuant to Guarantor's Guaranty of the obligations of BPI Packaging
Technologies, Inc. to the Lender, the Guarantor hereby grants to the Lender a
security interest in and floating charge in and against (including, without
limitation, a lien on and pledge of) all of the Guarantor's Collateral (as
hereinafter defined). The security interest and floating charge granted by this
Agreement is given to and shall be held by the Lender as security for the
payment and performance of all Obligations (as hereinafter defined). The Lender
shall have the unrestricted right from time to time apply (or to change any
application already made of) the proceeds of any of the Collateral to any of the
Obligations, as the Lender in its sole discretion may determine. The Guarantor
will, at such intervals as the Lender may request, notify the Lender, upon a
form satisfactory to the Lender, of all Collateral which has come into existence
since the date hereof or the date of the last such notification, including,
without limitation, the delivery of schedules of the Collateral and/or proceeds
resulting from the sale or other disposition thereof.
2. Definitions. The following definitions shall apply:
(a) "Collateral" shall mean all the Guarantor's present and future
right, title and interest in and to any and all of the following property,
whether such property is now existing or hereafter created:
(i) All Inventory;
(ii) All accounts, accounts receivable, contract rights, and chattel
paper, regardless of whether or not they constitute proceeds of
other Collateral;
(iii) All general intangibles, regardless of whether or not they
constitute proceeds of other Collateral, including, without
limitation, all of the Guarantor's rights to tax refunds and
all the Guarantor's rights (which
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the Lender may exercise or not as it in its sole discretion may
determine) to acquire or obtain goods and/or services with
respect to the manufacture, processing, storage, sale,
shipment, delivery or installation of any of the Guarantor's
inventory or other Collateral:
iv) All products of and accessions to any of the Collateral;
(v) All liens, guaranties, securities, rights, remedies and
privileges pertaining to any of the Collateral, including the
right of stoppage in transit;
(vi) All obligations owing to the Guarantor of every kind and
nature; and all choses in action;
(vii) All goodwill, trade secrets, computer programs (other than
programs relating to production equipment), customer lists,
trade names, trademarks and patents;
(viii) All documents and instruments (whether negotiable or
non-negotiable, and regardless of their being attached to
chattel paper);
(ix) All proceeds of Collateral of every kind and nature in whatever
form, including, without limitation, both cash and noncash
proceeds resulting or arising from the rendering of services by
the Guarantor or the sale or other disposition by the Guarantor
of the Inventory or other Collateral;
(x) All books and records relating to the conduct of the
Guarantor's business including, without in any way limiting the
generality of the foregoing, those relating to its accounts;
and
(xi) All deposit accounts maintained by the Guarantor with any bank,
trust company, investment firm or fund, or any similar
institution or organization.
(b) "Contract Rights" or "contract rights" means rights of the
Guarantor to payment under contracts not yet earned by performance and not
evidenced by instruments or chattel paper.
(c) "Inventory" shall include, without limitation, any and all goods,
wares, merchandise and other tangible personal property, including raw
materials, work in process, supplies and components, and finished goods, whether
held by the Guarantor for sale or other disposition, and also including any
returned or repossessed inventory or inventory detained from or rejected for
entry into the United States by the appropriate governmental authorities, all
products of and accessions to inventory and including documents of title,
whether negotiable or non-negotiable, representing any of the foregoing.
(d) "Debtors" shall mean the Guarantor's customers who are indebted
to the Guarantor.
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(e) "Obligation(s)" shall include, without limitation, all loans,
advances, indebtedness, notes, liabilities and amounts, liquidated or
unliquidated, owing by the Guarantor to the Lender at any time, of each and
every kind, nature and description, whether arising under this Agreement or
otherwise, and whether secured or unsecured, direct or indirect (that is,
whether the same are due directly by the Guarantor to the Lender; or are due
indirectly by the Guarantor to the Lender as endorser, guarantor or other
surety, or as obligor of obligations due third persons which have been endorsed
or assigned to the Lender, or otherwise), absolute or contingent, due or to
become due, now existing or hereafter contracted. Said term shall also include
all interest and other charges chargeable to the Guarantor or due from the
Guarantor to the Lender from time to time and all costs and expenses referred to
in this Agreement.
(f) "Person" or "party" shall include individuals, firms,
corporations and all other entities.
(g) "Event of Default" shall mean the occurrence of any one or more
of the following events:
(1) default of any liability, obligation or undertaking of the
Guarantor to the Lender hereunder;
(2) an Event of Default under the Loan and Security Agreement
of even date among BPI, RC AMERICA, INC. ("RC") and the Lender
(the "Loan Agreement");
(3) occurrence with respect to the Guarantor of one of the
Events of Default set forth in the Loan Agreement as if the
Guarantor hereunder was a party to the Loan Agreement; or
(4) the termination of any guaranty of the obligations of BPI
and RC to the Lender.
All words and terms used in this Agreement other than those
specifically defined herein shall have the meanings accorded to them in the
Massachusetts Uniform Commercial Code (General Law, Chapter 106) as amended from
time to time (herein the "Code").
3. Ordinary Course of Business. The Lender hereby authorizes and
permits the Guarantor to hold, process, sell, use or consume in the manufacture
or processing of finished goods, or otherwise dispose of the Inventory for fair
consideration, all in the ordinary course of the Guarantor's business,
excluding, without limitation, sales to creditors or in bulk or sales or other
dispositions occurring under circumstances which would or could create any lien
or interest adverse to the Lender's security interest or other right hereunder
in the proceeds resulting therefrom. The Lender also hereby authorizes and
permits the Guarantor to receive from the Debtors all amounts due as proceeds of
the Collateral at the Guarantor's own cost and expense, and also liability, if
any, subject to the direction and control of the Lender at all times; and the
Lender may at any time, without cause or notice, and whether or not a default
has occurred or demand has been made, terminate all or any part of the authority
and permission herein or elsewhere in this Agreement granted to the
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Guarantor with reference to the Collateral.
Until the Lender shall otherwise notify the Guarantor, all proceeds
of and collections of Collateral shall be retained by the Guarantor and used
solely for the ordinary and usual operation of the Guarantor's business. From
and after notice by the Lender to the Guarantor, all proceeds of and collections
of the Collateral shall be held in trust by the Guarantor for the Lender and
shall not be commingled with the Guarantor's other funds or deposited in any
bank account of the Guarantor; and the Guarantor agrees to deliver to the Lender
on the dates of receipt thereof by the Guarantor, duly endorsed to the Lender or
to bearer, or assigned to the Lender, as may be appropriate, all proceeds of the
Collateral in the identical form received by the Guarantor.
4. Allowances. The Guarantor may grant such allowances or other
adjustments to Debtors (exclusive of extending the time for payment of any item
which shall not be done without first obtaining the Lender's written consent in
each instance) as the Guarantor may reasonably deem to accord with sound
business practice, including, without limiting the generality of the foregoing
accepting the return of all or any part of the Inventory (subject to the
provisions set forth in this Agreement with reference to returned Inventory).
5. Costs and Expenses. The Guarantor shall pay to the Lender any and
all costs and expenses (including, without limitation, reasonable attorneys'
fees, court costs, litigation and other expenses) incurred or paid by the Lender
in establishing, maintaining, protecting or enforcing any of the Lender's rights
or the Obligations, including, without limitation, any and all such costs and
expenses incurred or paid by the Lender in defending the Lender's security
interest in, title or right to the Collateral or in collecting or attempting to
collect or enforcing or attempting to enforce payment of the Collateral.
6. Books and Records. The Guarantor shall hold its books and records
relating to the Collateral segregated from all the Guarantor's other books and
records in a manner satisfactory to the Lender; and shall deliver to the Lender
from time to time promptly at its request, all invoices, original documents of
title, contracts, chattel paper, instruments and any other writings relating
thereto, and other evidence of performance of contracts, or evidence of shipment
or delivery of the merchandise or of the rendering of services; and the
Guarantor will deliver to the Lender promptly at the Lender's request from time
to time additional copies of any or all of such papers or writings, and such
other information with respect to any of the Collateral and such schedules of
Inventory, schedules of accounts and such other writings as the Lender may in
its sole discretion deem to be necessary or effectual to evidence any loan
hereunder or the Lender's security interest in the Collateral.
7. Legends. The Guarantor shall promptly make, stamp or record such
entries or legends on the Guarantor's books and records or on any of the
Collateral as the Lender shall request from time to time to indicate and
disclose that the Lender has a security interest in such Collateral.
8. Inspection. The Lender, or its representatives, at any time and
from time to time, shall have the right, and the Guarantor will permit it and
them:
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(a) to examine, check, make copies of or extracts from any of the
Guarantor's books, records and files (including, without limitation, orders and
original correspondence);
(b) to inspect and examine the Guarantor's Inventory or other
Collateral and to check and test the same as to quality, quantity, value and
condition; and the Guarantor agrees to reimburse the Lender for its reasonable
costs and expenses in so doing; and
(c) to verify the Collateral or any portion or portions thereof or
the Guarantor's compliance with the provisions of this Agreement.
9. Further Assurance. The Guarantor will execute and deliver to the
Lender any writings and do all things necessary, or requested by the Lender to
carry into effect the provisions and intent of this Agreement, or to vest more
fully in or assure to the Lender the security interest in the Collateral granted
to the Lender by this Agreement or to comply with applicable statute or law and
to facilitate the collection of the Collateral, including the furnishing, at the
Guarantor's own cost and expense, at such intervals as the Lender may establish
from time to time, of reports, financial data and analyses satisfactory to the
Lender. A carbon, photographic or other reproduction of this Agreement or any
financing statement executed pursuant to the terms hereof shall be sufficient as
a financing statement for the purpose of filing with the appropriate
authorities.
10. Covenants and Warranties. The Guarantor covenants with and
warrants to the Lender:
(a) That all Inventory in which the Lender is now or hereafter given
a security interest pursuant to this Agreement will at all times be kept and
maintained in good order and condition at the sole cost and expense of the
Guarantor.
(b) That the Guarantor will maintain in force one or more policies of
insurance on all Inventory against risks of fire (with customary extended
coverage), sprinkler leakage, theft, loss or damage and other risks customarily
insured against by companies engaged in businesses similar to that of the
Guarantor in such amounts, containing such terms, in such form, for such
periods, covering such hazards and written by such companies as may be
satisfactory to the Lender, such insurance to be payable to the Lender as its
interest may appear in the event of loss; the policies for the same shall be
deposited with the Lender; no loss shall be adjusted thereunder without the
Lender's approval; and all such policies shall provide that they may not be
cancelled without first giving at least ten (10) days' written notice of
cancellation to the Lender. In the event that the Guarantor fails to provide
evidence of the maintenance of such insurance satisfactory to the Lender, the
Lender may, at is option, secure such insurance and charge the cost thereof to
the Guarantor and as a debit charge in the Guarantor's Loan Account, if any, or
any other account of the Guarantor with the Lender. At the option of the Lender,
all insurance proceeds
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received from any loss or damage to any of the Collateral shall be applied
either to the replacement or repair thereof or as a payment on account of the
Obligations. From and after the occurrence of an Event of Default, or after
demand respecting any Obligations payable upon demand, the Lender is authorized
to cancel any insurance maintained hereunder and apply any returned or unearned
premiums, all of which are hereby assigned to the Lender, as a payment on
account of the Obligations.
(c) That at the date hereof the Guarantor is (and as to Collateral
that the Guarantor may acquire after the date hereof, will be) the lawful owner
of the Collateral, and that the Collateral, and each item thereof, is, will be,
and shall continue to be free of all restrictions, liens, encumbrances, or other
rights, title or interests (other than the security interest therein granted to
the Lender hereby), credits, defenses, recoupments, set-offs or counterclaims
whatsoever; that the Guarantor has and will have full power and authority to
grant to the Lender a security interest therein, and that the Guarantor has not
transferred, assigned, sold, pledged, encumbered, subjected to lien or granted
any security interest in, and will not transfer, assign, sell (except sales or
other dispositions in the ordinary course of business in respect to Inventory as
expressly permitted in this Agreement), pledge, encumber, subject to lien or
grant any security interest in any of the Collateral (or any of the Guarantor's
right, title or interest therein), to any person other than the Lender; that the
Collateral is and will be valid and genuine in all respects; that all accounts
arise out of legally enforceable and existing contracts in accordance with their
tenor; and that upon the Guarantor's acquisition of any interest in contract
rights, it shall in writing immediately notify the Lender thereof, specifically
identifying the same as contract rights, and, except for such contract rights,
no part of the Collateral (or the validity or enforceability by the Lender
thereof) is or shall be contingent upon the fulfillment of any agreement or
condition whatsoever and that the Collateral, other than Inventory and
Equipment, shall represent unconditional and undisputed bona fide indebtedness
by the Debtor for sales or leases of Inventory shipped and delivered or services
rendered by the Guarantor to Debtor, and is not and will not be subject to any
discount (except such cash or trade discount as may be shown on any invoice,
contract or other writing delivered to the Lender); and that the Guarantor will
warrant and defend the Lender's right to and interest in the Collateral against
all claims and demands of all persons whatsoever.
(d) That no contract right, account, general intangible or chattel
paper is or will be represented by any note or other instrument (negotiable or
otherwise), and that no contract right, account or general intangible is, or
will be represented by any conditional or installment sales obligation or other
chattel paper, except such instruments or chattel paper as have been or
forthwith upon receipt by the Guarantor will be delivered to the Lender (duly
endorsed or assigned, as may be appropriate), such delivery, in the case of
chattel paper, to include all executed copies except those in the possession of
the installment buyer and that any security for or guaranty of any of the
Collateral shall be delivered to the Lender immediately upon receipt thereof by
the Guarantor, with such assignments and endorsements thereof as the Lender may
request.
(e) That, except for sale, processing, use consumption or other
disposition in the ordinary course of business, the Guarantor will keep all
Inventory only at locations specified in this Agreement; that the Guarantor
shall, during the term of this Agreement, keep the Lender currently and
accurately informed in writing of each
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location where the Guarantor's records relating to its accounts and contract
rights, respectively, are kept, and shall not remove such records, or any of
them, to another state without giving the Lender at least thirty (30) days prior
written notice thereof; that the Guarantor's chief executive office is correctly
stated in the preamble to this Agreement, and Guarantor shall, during the term
of this Agreement, keep the Lender currently and accurately informed in writing
of each of its other places of business, and shall not change the location of
such chief executive office or open any new, or close, move or change any
existing of new place of business without giving the Lender at least thirty (30)
days prior written notice thereof.
(f) That the Lender shall not be deemed to have assumed any liability
or responsibility to the Guarantor or any third person for the correctness,
validity or genuineness of any instruments or documents that may be released or
endorsed to the Guarantor by the Lender (which shall automatically be deemed to
be without recourse to the Lender in any event) or for the existence, character,
quantity, quality, condition, value or delivery of any goods purporting to be
represented by any such documents; and that the Lender, by accepting such
security interest in the Collateral, or by releasing any Collateral to the
Guarantor, shall not be deemed to have assumed any obligation or liability to
any supplier or Debtor or to any other third party, and the Guarantor agrees to
indemnify and defend the Lender and hold it harmless in respect to any claim or
proceeding arising out of any matter referred to in this Paragraph.
(g) That each account or other item of Collateral, other than
Inventory will be paid in full on or before the date shown as its due date in
the schedule of Collateral, in the copy of the invoice(s) relating to the
account or other Collateral or in contracts relating thereto; that upon any
suspension of business, assignment or trust mortgage for the benefit of
creditors, dissolution, petition in receivership or under any chapter of the
Bankruptcy Code as amended from time to time by or against any Debtor, any
Debtor becoming insolvent or unable to pay its debts as they mature, or any
other act of the same or different nature amounting to a business failure, the
Guarantor will forthwith notify the Lender thereof.
(h) That the Guarantor will immediately notify the Lender of any loss
or damage to, or material diminution in or any occurrence which would adversely
affect the value of, the Inventory, or other Collateral.
(i) That the Lender may from time to time in the Lender's discretion
hold and treat any deposits or other sums at any time credited by or due from
the Lender to the Guarantor and any securities or other property of the
Guarantor in the possession of the Lender, whether for safekeeping or otherwise,
as collateral security for and apply or set the same off against any Obligations
whether or not an Event of Default has occurred or demand has been made. Without
limiting the generality of the foregoing, if at any time the amount of the
revolving credit as then set by the Lender shall be exceeded, the Guarantor
shall pay cash to the Lender in the amount of such excess if the Lender so
requests, or the Lender may charge such amount against any deposit account of
the Guarantor with the Lender.
(j) That if any of the Collateral includes a charge for, or if any
loan by the Lender to the Guarantor shall be subject to any tax payable to any
governmental taxing authority, the Guarantor shall pay such tax independently
when due. The Lender
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may retain the full proceeds of the Collateral and the Guarantor will indemnify
and save the Lender harmless from any loss, cost, liability or expense
(including, without limitation, reasonable attorney's fees), in connection
therewith.
(k) That at any time or times and whether or not an Event of Default
has occurred or demand has been made, the Lender may notify any Debtor or
Debtors of its security interest in the Collateral and collect all amounts due
thereon; and the Guarantor agrees, at the request of the Lender, to notify all
or any of the Debtors in writing of the Lender's security interest in the
Collateral in whatever manner the Lender requests and, if the Lender so
requests, to permit the Lender to mail such notices at the Guarantor's expense.
(l) That the Lender may, at its option, from time to time, discharge
any taxes, liens or encumbrances of any of the Collateral, or take any other
action that the Lender may deem proper to repair, maintain or preserve any of
the Collateral, and the Guarantor will pay to the Lender on demand or the Lender
in its sole discretion may charge to the Guarantor all amounts so paid or
incurred by it or as a debit charge against the Guarantor's loan account, if
any, or any other deposit account of the Guarantor with the Lender.
(m) That the Lender in its sole discretion from time to time shall
have the right to demand and receive from the Guarantor additional property of
nature and types not included in this Agreement, including, without limitation,
interests in real property, and thereupon the words "Collateral" and "security
interest" shall be deemed to include, any and all such additional property and
the Lender's interests therein. The Guarantor shall promptly, upon request of
the Lender, deliver, transfer, assign and make over to the Lender all the
Guarantor's right, title and interest in any such additional property; and shall
execute and deliver to the Lender any writings and do all things necessary,
effectual or requested by the Lender to vest fully in or assure to the Lender
(including, without limitation, all steps to create and perfect) its security
interest in such additional property. The Lender shall have in respect to such
additional property all the rights, powers, privileges, discretions and
immunities granted to it under this Agreement with the same force and effect as
if said additional property had been listed herein, including, without
limitation, the right to apply such property, or any part thereof, and any
proceeds thereof to any Obligation.
(n) That all representations now or hereafter made by the Guarantor
to the Lender, whether in this Agreement or in any supporting or supplemental
reports, statements or documentation, including, without limitation, statements
relating to the Collateral and financial statements, are, will be, and shall
continue to be true and correct in all respects.
11. Power of Attorney. The Guarantor hereby irrevocably constitutes
and appoints the Lender as the Guarantor's true and lawful attorney, with full
power of substitution, at the sole cost and expense of the Guarantor but for the
sole benefit of the Lender, to convert the Collateral into cash, including,
without limitation, completing the manufacture or processing of work in process,
and the sale (either public or private) of all or any portion or portions of the
Inventory and other Collateral; to enforce collection of the Collateral, either
in its own name or in the
8
name of the Guarantor, including, without limitation, executing releases,
compromising or settling with any Debtors and prosecuting, defending,
compromising or releasing any action relating to the Collateral; to receive,
open and dispose of all mail addressed to the Guarantor and to take therefrom
any remittances or proceeds of Collateral in which the Lender has a security
interest; to notify Post Office authorities to change the address for delivery
of mail addressed to the Guarantor to such address as the Lender shall
designate; to endorse the name of the Guarantor in favor of the Lender upon any
and all checks, drafts, money orders, notes, acceptances or other instruments of
the same or different nature; to sign and endorse the name of the Guarantor on
and to receive as secured party any of the Collateral, any invoices schedules of
Collateral, freight or express receipts, or bills of lading, storage receipts,
warehouse receipts, or other documents of title of the same or different nature
relating to the Collateral; to sign the name of the Guarantor on any notice of
the Debtors or on verification of the Collateral; and to sign and file or record
on behalf of the Guarantor any financing or other statement in order to perfect
or protect the Lender's security interest. The Lender shall not be obliged to do
any of the acts or exercise any of the powers hereinabove authorized, but if the
Lender elects to do any such act or exercise any such power, it shall not be
accountable for more than it actually receives as a result of such exercise of
power, and it shall not be responsible to the Guarantor except for willful
misconduct in bad faith. All powers conferred upon the Lender by this Agreement,
being coupled with an interest, shall be irrevocable so long as any Obligation
of the Guarantor to the Lender shall remainunpaid.
Whenever the Lender deems it desirable that any legal action be
instituted with respect to any Collateral or that any other action be taken in
any attempt to effectuate collection of any Collateral, the Lender may reassign
the item in question to the Guarantor (and if the Lender shall execute any such
reassignment, it shall automatically be deemed to be without recourse to the
Lender in any event) and require the Guarantor to proceed with such legal or
other action at the Guarantor's sole liability, cost and expense, in which event
all amounts collected by the Guarantor on such item shall nevertheless be
subject to the Lender's security interest.
12. Default. If an Event of Default shall occur, at the election of
the Lender, all Obligations shall become immediately due and payable without
notice or demand, except with respect to Obligations payable on DEMAND, which
shall be due and payable on DEMAND, whether or not an Event of Default has
occurred.
The Lender is hereby authorized, at its election, after an Event of
Default or after Demand, without any further demand or notice except to such
extent as notice may be required by applicable law, to take possession and/or
sell or otherwise dispose of all or any of the Collateral at public or private
sale; and the Lender may also exercise any and all other rights and remedies of
a secured party under the Code or which are otherwise accorded to it by
applicable law, all as the Lender may determine. If notice of a sale or other
action by the Lender is required by applicable law, unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, the Guarantor agrees that five (5) days' written
notice to the Guarantor, or the shortest period of written notice permitted by
such law, whichever is larger, shall be sufficient notice; and that to the
extent permitted by law, the Lender, its officers, attorneys and agents may bid
and become purchasers at any such sale, if public, and may purchase at any
private
9
sale any of the Collateral that is of a type customarily sold on a recognized
market or which is the subject of widely distributed standard price quotations.
Any sale (public or private) shall be free from any right of redemption, which
the Guarantor hereby waives and releases. No purchaser at any sale (public or
private) shall be responsible for the application of the purchase money. Any
balance of the net proceeds of sale remaining after paying all Obligations of
the Guarantor to the Lender shall be returned to the Guarantor or to such other
party as may be legally entitled thereto; and if there is a deficiency, the
Guarantor shall be responsible for the same, with interest. Upon demand by the
Lender, the Guarantor shall assemble the Collateral and make it available to the
Lender at a place designated by the Lender which is reasonably convenient to the
Lender and the Guarantor. The Guarantor hereby acknowledges that the Lender has
extended credit and other financial accommodations to the Guarantor upon
reliance of the Guarantor's granting the Lender the rights and remedies
contained in this Agreement including without limitation the right to take
immediate possession of the Collateral upon the occurrence of an Event of
Default or after DEMAND with respect to Obligations payable on DEMAND and the
Guarantor hereby acknowledges that the Lender is entitled to equitable and
injunctive relief to enforce any of its rights and remedies hereunder or under
the Code and the Guarantor hereby waives any defense to such equitable or
injunctive relief based upon any allegation of the absence of irreprable harm to
the Lender.
13. Indemnification. The Guarantor shall indemnify, defend, and hold
the Lender harmless of and from any claim brought or threatened against the
Lender by the Guarantor, any guarantor or endorser of the Obligations, or any
other person (as well from attorneys' reasonable fees and expenses in connection
therewith) on account of the Lender's relationship with the Guarantor, or any
guarantor or endorser of the Obligations (each of which may be defended,
compromised, settled, or pursued by the Lender with counsel of the Lender's
election, but at the expense of the Guarantor). The within indemnification shall
survive payment of the Obligations, and/or any termination, release, or
discharge executed by the Lender in favor of the Guarantor.
14. Waivers. The Guarantor waives notice of nonpayment, demand,
presentment, protest or notice of protest of the Collateral, and all other
notices, consents to any renewals or extensions of time of payment thereof, and
generally waives any and all suretyship defenses and defenses in the nature
thereof. No delay or omission of the Lender in exercising or enforcing any of
its rights, powers, privileges, remedies, immunities or discretions (all of
which are hereinafter collectively referred to as "the Lender's rights and
remedies") hereunder shall constitute a waiver thereof; and no waiver by the
Lender of any default of the Guarantor hereunder or of any demand shall operate
as a waiver of any other default hereunder or of any other demand. No term or
provision hereof shall be waived, altered or modified except with the prior
written consent of the Lender, which consent makes explicit reference to this
Agreement. Except as provided in the preceding sentence, no other agreement or
transaction, of whatsoever nature, entered into between the Lender and the
Guarantor at any time (whether before, during or after the effective date or
term of this Agreement) shall be construed as a waiver, modification or
limitation of any of the Lender's rights and remedies under this Agreement (nor
shall anything in this Agreement be construed as a waiver, modification or
limitation of any of the Lender's rights and remedies under any such other
agreement or transaction) but all the Lender's rights and remedies not only
under the provisions of this Agreement but also under any such other agreement
or transaction shall be cumulative and not alternative
10
or exclusive, and may be exercised by the Lender at such time or times and in
such order of preference as the Lender in its sole discretion may determine.
15. Severability. If any provision of this Agreement or portion of
such provision or the application thereof to any person or circumstance shall to
any extent be held invalid or unenforceable, the remainder of this Agreement (or
the remainder of such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
16. Binding Effect of Agreement. This Agreement shall be binding upon
and inure to the benefit of the respective heirs, executors, administrators,
legal representatives, successors and assigns of the parties hereto, and shall
remain in full force and effect (and the Lender shall be entitled to rely
thereon) until terminated as to future transactions by written notice from
either party to the other party of the termination hereof; provided that any
such termination shall not release or affect any Collateral in which the Lender
already has a security interest or any Obligations incurred or rights accrued
hereunder prior to the effective date of such notice (as hereinafter defined) of
such termination. Notwithstanding any such termination, the Lender shall have a
security interest in all Collateral to secure the payment and performance of
Obligations arising after such termination as a result of commitments or
undertakings made or entered into by the Lender prior to such termination. The
Lender may transfer and assign this Agreement and deliver the Collateral to the
assignee, who shall thereupon have all of the rights of the Lender; and the
Lender shall then be relieved and discharged of any any responsibility or
liability with respect to this Agreement and the Collateral.
17. Notices. Any notices under or pursuant to this Agreement shall be
deemed duly received by the Guarantor and effective if delivered in hand to any
officer or agent of the Guarantor, or if mailed by registered or certified mail,
return receipt requested, addressed to the Guarantor at the Guarantor's last
address on the Lender's records. Any notices to the Lender under or pursuant to
this Agreement shall be mailed to the Lender by registered, certified, or
express mail, return receipt requested, addressed to the Lender at the address
shown at the beginning of this Agreement and shall be deemed effective five (5)
days after receipt by the Lender.
18. Reproductions. This Agreement and all documents which have been
or may be hereinafter furnished by Guarantor to the Lender may be reproduced by
the Lender by any photographic, photostatic, microfilm, xerographic, or similar
process, and any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made in the
regular course of business).
BORROWER:
BPI PACKAGING (UK) LIMITED
[By:] /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
-----------------------
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Title: Chief Executive Officer
---------------------------
[By:]____________________________
Name:____________________________
Title:___________________________
ACCEPTED:
Foothill Capital Corporation
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Senior Vice President
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss November 25, 1996
Then personally appeared the above-named, Xxxxxx X. Xxxxxxxxx the CEO
of BPI Packaging (UK) Limited, and acknowledged the foregoing instrument to be
his free act and deed, before me,
------------------------------------
, Notary Public
My Commission Expires: Nov. 2, 2002
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