Loan No.: 0007365-001
SECURITY AGREEMENT
(Chicago, Xxxx County, Illinois)
Debtor
Name: XXXXXXX FAMILY, LLC, a Massachusetts limited liability company
Address: 000 Xxxxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
Secured Party:
Name: GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION,
a Delaware corporation, its successors and assigns
Address: Franchise Finance Department
00000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Debtor, for valuable consideration, hereby grants to Secured Party a
security interest in the property listed on EXHIBIT B hereto, and any and all
additions and substitutions thereto (the "Collateral") (i) to secure payment of
the indebtedness evidenced by that certain Promissory Note of even date
herewith, payable to the order of Secured Party, in the principal amount of Four
Million Fifty Thousand and no hundredths Dollars ($4,050,000.00) (the "Note")
and (ii) to secure all other obligations of Debtor arising under all documents
securing or executed in connection with the Note, except the Environmental
Indemnity Agreement Regarding Hazardous Substances (collectively, the "Loan
Documents").
Debtor expressly warrants and convenants:
1. Except for the security interest granted hereby, Debtor is,
or to the extent that this Security Agreement states that the
Collateral is to be acquired after the date hereof, will be,
the owner of the Collateral free from any lien, security
interest or encumbrance. Debtor understands that any further
encumbrance of the Collateral is prohibited. Debtor shall
defend the Collateral against all claims and demands of all
persons at any time claiming the same or any interest therein.
2. The Collateral is used or bought primarily for use in the
business of Debtor and not for consumer purposes.
3. Debtor's business address is as stated above. The Collateral
is located at or on or is used or owned for or in connection
with the real estate situated in Chicago, Xxxx County,
Illinois, and described on the attached EXHIBIT A herein
incorporated by this reference (the "Property").
4. Debtor shall promptly notify Secured Party of any change in
the location of the Collateral or any change in Debtor's
principal place of business.
5. Debtor shall pay when due, prior to delinquency, all taxes and
assessments of every nature which may be levied or assessed
against the Collateral.
6 Except for liens in favor of Secured Party, without Secured
Party's prior written consent Debtor shall not permit or allow
any lien, security interest or encumbrance whatsoever upon the
Collateral and shall not permit the Collateral to be attached
or replevied. Secured Party's consent to a junior lien by an
entity owned by, or under common control with, Secured Party
shall not be unreasonably withheld.
7. The Collateral is in good condition and Debtor shall keep the
Collateral in good condition (reasonable wear and tear
excepted) and from time to time, forthwith, replace and repair
all such parts of the Collateral as may be broken, worn out,
or damaged without allowing any lien to be created upon the
Collateral on account of such replacement or repairs. Secured
Party may examine and inspect the Collateral at any time,
wherever located, subject to reasonable prior notice.
8. Debtor wIll not use the Collateral in violation of any
applicable statutes, regulations or ordinances
9 Notwithstanding anything else contained herein to the
contrary, if any personal property for use on the Property
will be leased to Debtor, Secured Party's interest therein
shall be subordinate to lessor's interest therein.
Until the occurrence of an "Event of Default" (as hereinafter
defined), Debtor may have possession of the Collateral and use it in any lawful
manner, and upon the occurrence of an Event of Default Secured Party shall have
the immediate right to the possession of the Collateral.
Debtor shall be in default under this Security Agreement upon the
happening of any of the following events (an "Event of Default"):
(a) default in the payment or performance of any obligation,
covenant or liability contained or referred to in this
Security Agreement (provided, however, that as to No. 5 above,
Debtor shall have been given ten (10) days written notice and
opportunity to cure by Secured Party and thirty (30) days
written notice and opportunity to cure as to Nos. 6 and 7); or
(b) the occurrence of an "Event of Default" as defined under the
Note (which defined term includes applicable notice and grace
periods), any instrument securing the Note, including the
Mortgage, Security Agreement, Assignment of Leases and Rents,
and Fixture Filing securing the Note (the "Security
Instrument"), any other Loan Document or the Environmental
Indemnity Agreement Regarding Hazardous Substances; or
(c) the loss, theft, damage or destruction to or of any of the
Collateral as to which adequate insurance has not been
provided which shall materially and substantially diminish the
aggregate value of the Collateral, if the lost, stolen,
damaged or destroyed items are not repaired or replaced within
thirty (30) days after the date of the loss, theft, damage or
destruction and, in the case of any replacement, with new
items which are comparable in value to the items lost, stolen,
damaged or destroyed and with respect to which Secured Party
is granted a security interest; or
(d) the sale or encumbrance of any of the Collateral except in the
ordinary course of business or except Collateral which is
immediately replaced with similar collateral of equal or
greater value; or
(e) the making of any levy, seizure or attachment on or to the
Collateral which is not released or dismissed within ninety
(90) days.
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Upon an Event of Default and at any time thereafter, Secured Party
may declare the Note immediately due and payable and shall have the remedies of
a secured party under the Articles of the Uniform Commercial Code as adopted in
the State of Illinois (the "UCC"). Secured Party may require Debtor to assemble
the Collateral and deliver or make it available to Secured Party at a place to
be designated by Secured Party which is reasonably convenient to both parties.
Secured Party may require that the Collateral be sold at a public
sale at the same time and place as the sale of the Property, or Secured Party
may sell the Collateral at one or more other public or private sales in
accordance with the UCC. The Collateral shall not be required to be exhibited,
presented or displayed at any sale. In the event that the Collateral is sold
under the Security Instrument, Secured Party hereby assigns its security
interest in the Collateral to the trustee or sheriff selling the Property under
the Security Instrument. Debtor agrees that a sale of the Collateral under the
Security Instrument and the notices required under the laws of Illinois for the
sale of real property are commercially reasonable and adequate under the UCC.
Debtor agrees to pay to Secured Party in addition to the
Indebtedness secured hereby, all expenses of retaking, holding, preparing for
sale and selling incurred by Secured Party in connection with realization on the
Collateral including reasonable attorneys' fees and costs. In addition, in the
event suit or action is instituted to enforce or interpret this Agreement
(including without limitation efforts to modify or vacate any automatic stay or
injunction), the prevailing party shall be entitled to recover all expenses
reasonably incurred at, before or after trial and on appeal whether or not
taxable as costs, or in any bankruptcy proceeding, including, without
limitation, attorneys' fees, witness fees (expert and otherwise), deposition
costs, copying charges and other expenses.
No waiver by Secured Party of an Event of Default shall operate as a
waiver of any other default or of the same default on a future occasion. The
taking of this Security Agreement shall not waive or impair any other security
said Secured Party may have or hereafter acquire for the payment of the Note nor
shall the taking of any such additional security waive or impair this Security
Agreement. Secured Party may resort to any security it may have in the order it
may deem proper.
All rights of Secured Party hereunder shall inure to the benefit of
its successors and assigns. All promises and duties of Debtor shall bind its
successors and assigns.
Any and all notices, elections, demands or requests permitted or
required to be made under this Security Agreement shall be in writing, signed by
the party giving such notice, election, demand or request and shall be delivered
personally, or by telegram, or sent by registered, certified, or Express United
States mail, postage prepaid, or by Federal Express or similar service requiring
a receipt, to the other party at the address set forth above or to such other
party and at such other address within the United States of America as any party
may designate as provided herein. The date of receipt of such notice, election,
demand or request shall be the earliest of (i) the date of actual receipt, (ii)
three (3) business days after the date of mailing by registered or certified
mail, (iii) one (1) business day after the date of mailing by Express Mail, or
the delivery (for redelivery) to Federal Express or another similar service
requiring a receipt, or (iv) the date of personal delivery (or refusal upon
presentation for delivery).
This Security Agreement shall be governed and construed in
accordance with the laws of the State of Illinois (without regard to choice of
law principles).
TIME IS OF THE ESSENCE UNDER THIS SECURITY AGREEMENT.
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IN WITNESS WHEREOF, Debtor has caused this Security Agreement to be
executed under seal by its duly authorized representative as of July 30, 2001.
DEBTOR:
XXXXXXX FAMILY, LLC
A Massachusetts Limited Liability Company
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Title: Managing Member
[SEAL]
EXHIBITS:
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Exhibit A - Legal Description
Exhibit B - Personal Property
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