Exhibit 10.9(c)
Security Agreement
(All Assets)
________________________________________________________________________________
As of August 12 , 1998, for value received, the undersigned ("Borrower") grants
to Comerica Bank ("Bank"), a Michigan 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 N/A ("Debtor") and/or
Borrower. Indebtedness includes without limit any and all obligations or
liabilities of the Debtor and/or Borrower 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.
Borrower agrees to pay Bank all such costs incurred by the Bank, immediately
upon demand, and until paid all costs shall bear interest at-the highest per
annum-rate applicable to any of the Indebtedness, but not in excess of the
maximum rate permitted by law. 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 Borrower now or
later owns or has an interest in, wherever located:
(a) all Accounts Receivable (for purposes of this Agreement,
"Accounts Receivable" consists of all accounts, general
intangibles, chattel paper, contract rights, deposit accounts,
documents and instruments),
(b) all Inventory,
(c) all Equipment and Fixtures,
(d) specific items listed below and/or on attached *Schedule A, if
any, is/are also included in Collateral:
(e) all goods, instruments, documents, policies and certificates
of insurance, deposits, money, investment property or other
property (except real property which is not a fixture) which
are now or later in possession or control of bank, or as to
which. Bank now or later controls possession by documents or
otherwise, and
(f) 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 Borrower.
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2. Warranties, Covenants and Agreements. Borrower warrants, covenants and
agrees as follows:
2.1 Borrower 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
Borrower's books and records. Borrower 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, Borrower
shall be deemed to have warranted that (a) Borrower 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)
Borrower acquired its rights in the Collateral in the ordinary
course of its business.
2.3 Borrower will keep the Collateral free at all times from all
claims, liens, security interests and encumbrances other than
those in favor of Bank. Borrower 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 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 Borrower 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. Borrower 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 Borrower is not relying upon assets in
which the Bank may have a lien or security interest for
payment of the Indebtedness.
2.5 Borrower 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 Borrower 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 Borrower
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 Borrower will keep the Collateral in good condition and will
protect it from loss, damage, or deterioration from any cause.
Borrower 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. Borrower
will deliver to Bank immediately upon demand evidence
satisfactory to Bank that the required insurance has been
procured. If Borrower fails to maintain satisfactory
insurance, Bank has the option (but not the obligation) to do
so and Borrower 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 On each occasion on which Borrower evidences to Bank the
account balances on and the nature and extent of the Accounts
Receivable, Borrower shall be deemed to have warranted that
except as otherwise indicated (a) each of those Accounts
Receivable is valid and enforceable without performance by
Borrower of any act; M each of those account balances are in
fact owing, (there are
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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 Borrower to Bank, (e) Borrower has not received
with respect to any Account Receivable, any notice of the
death of the related account Borrower, nor of the dissolution,
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
Borrower, 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. Borrower will
do all acts and will execute all writings requested by Bank to
perform, enforce performance of, and collect all Accounts
Receivable. Borrower shall neither make nor permit any
modification, compromise or substitution for any Account
Receivable without the prior written consent of Bank. Borrower
shall, at Bank's request, arrange for verification of Accounts
Receivable directly with account debtors or by other methods
acceptable to Bank.
2.8 Borrower 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").
2.9 If Bank, acting in its sole discretion, redelivers Collateral
to Borrower or Borrower's designee for the purpose of (a) the
ultimate sale or exchange thereof; or M 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 Borrower requests any such redelivery, Borrower
will deliver with such request a duly executed financing
statement in form and substance satisfactory to Bank. Any
proceeds of Collateral coming into Borrower'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) deliver any or
all of the Collateral to Borrower, 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.
2.10 At any time and without notice, Bank may (a) cause any or all
of the Collateral to be transferred to its name or to the name
of its nominees; M 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 the 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 the Collateral, and deposit or surrender control of
the Collateral, and accept other property in exchange for the
Collateral and hold or apply the property or money so received
pursuant to this Agreement.
2.11 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.
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2.12 Borrower delivers this Agreement based solely on Borrower's
independent investigation of (or decision not to investigate)
the financial condition of Debtor and is not relying on any
information furnished by Bank. Borrower assumes full
responsibility for obtaining any further information
concerning the Debtor's financial condition, the status of the
Indebtedness or any other matter which the undersigned may
deem necessary or appropriate now or later. Borrower waives
any duty on the part of Bank, and agrees that Borrower is not
relying upon nor expecting Bank to disclose to Borrower 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 Borrower's rights
against Debtor. Borrower knowingly accepts the full range of
risk encompassed in this Agreement, which risk includes
without limit the possibility that Debtor may incur
Indebtedness to Bank after the financial condition of Debtor,
or Debtor's ability to pay debts as they mature, has
deteriorated.
2.13 Borrower 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.
3. Collection of Proceeds.
3.1 Borrower agrees to collect and enforce payment of all
Collateral until Bank shall direct Borrower to the contrary.
Immediately upon notice to Borrower by Bank and at all times
after that, Borrower 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 of
suretyship or guaranty and all rights in the nature of a lien
or security interest which Borrower now or later has regarding
Collateral. Immediately upon and after such notice, Borrower
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 Borrower in the Collateral, in the form
received by Borrower without commingling with any other funds,
and (b) immediately deliver to Bank all property in Borrower's
possession or later coming into Borrower's possession through
enforcement of Borrower's rights or interests in the
Collateral. Borrower irrevocably authorizes Bank or any Bank
employee or agent to endorse the name of Borrower 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. Borrower agrees to take
all steps necessary to preserve rights against prior parties
with respect to the Collateral. Nothing in this Section 3.1
shall be deemed a consent by Bank to any sale, lease or other
disposition of any Collateral.
3.2 Borrower 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: Borrower shall at its sole
expense establish and maintain (and Bank, at Bank's option may
establish and maintain at Borrower's expense): (a) an United
States Post Office lock box (the "Lock Box"), to which Bank
shall have exclusive access and control. Borrower expressly
authorizes Bank, from time to time, to remove contents from
the Lock Box, for disposition in accordance with this
Agreement. Borrower agrees to notify all account debtors and
other parties obligated to Borrower that all payments made to
Borrower
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(other than payments by electronic funds transfer) shall be
remitted, for the credit of Borrower, to the Lock Box, and
Borrower 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. Borrower agrees to notify all account debtors and
other parties obligated to Borrower that all payments made to
Borrower by electronic funds transfer shall be remitted to the
Cash Collateral Account, and Borrower, at Bank's request,
shall include a like statement on all invoices. Borrower shall
execute all documents and authorizations as required by Bank
to establish and maintain the Lock Box and the Cash Collateral
Account.
3.3 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 Borrower 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. Borrower agrees that Bank shall not be liable for any
loss or damage which Borrower 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. Borrower 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"), Borrower 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
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appointee, sequestrator or otherwise, for all or any
part of the property of Borrower, Debtor, or any
Guarantor; or M 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 Borrower 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 disposition, 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 Borrower under, applicable law
are expressly waived by Borrower 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
Borrower with respect to that Collateral.
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4.3 Borrower 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.
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
__________ 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 Borrower or to such other person(s) as may be entitled
to it under applicable law. Borrower shall remain liable for
any deficiency, which it shall pay to Bank immediately upon
demand.
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 Borrower. 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 Borrower 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 any rights.
4.7 Borrower irrevocably appoints Bank or any agent of Bank (which
appointment is coupled with an interest) the true and lawful
attorney of Borrower (with full power of substitution) in the
name, place and stead of, and at the expense of, Borrower:
(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
Borrower 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 Borrower
permitted or required under this Agreement.
4.8 Upon the occurrence of an Event of Default, Borrower 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 Borrower.
5. Miscellaneous.
5.1 Until Bank is advised in writing by Borrower to the contrary,
all notices, requests and demands required under this
Agreement or by law shall be given to, or made upon, Borrower
at the first address indicated in Section 5.15 below.
5.2 Borrower will give Bank not less than 90 days prior written
notice of all contemplated changes in Borrower'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.
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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
Borrower, the Indebtedness or this Agreement, however
obtained. Borrower further agrees that Bank may provide
information relating to this Agreement or relating to Borrower
to the Bank's parent, affiliates, subsidiaries, and service
providers.
5.5 In addition to Bank's other rights, any indebtedness owing
from Bank to Borrower can be set off and applied by Bank on
any Indebtedness at any time(s) either before or after
maturity or demand without notice to anyone.
5.6 Borrower 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 Debtor 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. Borrower 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 Debtor
to incur additional indebtedness, all without obligation to,
Borrower and without affecting in any manner the unconditional
obligation of Borrower under this Agreement. Borrower
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 Borrower 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 Borrower now or
later securing the Indebtedness, and acknowledges that as of
the date of this Agreement no such defense or setoff exists.
5.7 Borrower waives any and all rights (whether by subrogation,
indemnity, reimbursement, or otherwise) to recover from Debtor
any amounts paid or the value of any Collateral given by
Borrower pursuant to this Agreement.
5.8 In the event that applicable law shall obligate Bank to give
prior notice to Borrower of any action to be taken under this
Agreement, Borrower agrees that a written notice given to
Borrower 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 Borrower or
when placed in an envelope addressed to Borrower 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
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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 Borrower 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, Borrower 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 or otherwise) this continuation or
reinstatement, although the failure of Borrower 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 Borrower and the heirs, legal
representatives, successors, and assigns of Borrower. Nothing
in this Section 5.10 is deemed a consent by Bank to any
assignment by Borrower.
5.11 If there is more than one Borrower, all undertakings,
warranties and covenants made by Borrower and all rights,
powers and authorities given to or 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 Article 9
(or, absent definition in Article 9, in any other Article) of
the Uniform Commercial Code. "Uniform Commercial Code" means
Act No. 174 of the Michigan Public Acts of 1962, as amended.
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 Borrower 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 Borrower and an authorized officer of
Bank. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Michigan,
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 prevent Bank from making demand,
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 Borrower's chief executive office is located and shall be
maintained at 0000 XX 00xx Xxxxxx
XXXXXX XXXXXXX
Xxxxx Xxxxxxx 00000 Dade
----- ------- ----- ------
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:
9
See attached list of Collateral Locations
-----------------------------------------
Street Address ________________________________________________________
_______________________________________________________________________
City State Zip Code County
Collateral shall be maintained only at the locations identified in this
Section 5.15.
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 2.13 of this Agreement shall survive
termination.
6. BORROWER 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 ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS
AGREEMENT OR THE INDEBTEDNESS.
10
Special Provisions Applicable to this Agreement. (*None, if left blank)
Borrower:
Jet Aviation Trading, Inc.
----------------------------
Borrower Name Typed/Printed
By:/s/ Xxxxxx Xxxxxx
-------------------------
Signature of
By:/s/ Xxxxxx Xxxxxx
-------------------------
Its: Chief Financial Officer
-----------------------
Title
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