EXHIBIT 10.6.2
No. 582-07596
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SECURITY AGREEMENT
SECURITY AGREEMENT ("Agreement") dated as of August 26, 1996,
between C.A. XXXXXX MAINTENANCE, INC., a corporation organized
and existing under the laws of the State of Texas having its
principal office at 0000 Xxxxxxx Xxxxxx Xxx., Xxxx Xxxxxx, Xxxxx
00000 ("Grantor"), and XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES
INC., a corporation organized and existing under the laws of the
State of Delaware having its principal office at 00 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, XX 00000 ("MLBFS").
In order to induce MLBFS to extend or continue to extend credit
to AMERICAN ECO/SP CORPORATION ("customer"), under the Loan
Agreement (as defined below) or otherwise, and for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Grantor hereby agrees with MLBFS as follows:
1. DEFINITIONS
(a) SPECIFIC TERMS. In addition to terms defined elsewhere in
this Agreement, when used herein the following terms shall have
the following meanings:
(i) "Account Debtor" shall mean any party who is or may become
obligated with respect to an Account or Chattel Paper.
(ii) "Business Day" shall mean any day other than a Saturday,
Sunday, federal holiday or other day on which the New York Stock
Exchange is regularly closed.
(iii) "Collateral" shall mean all Accounts, Chattel paper,
Contract Rights, Inventory, Equipment, Fixtures, General
Intangibles, Deposit Accounts, Documents and instruments of
Grantor, howsoever arising, whether now owned or existing or
hereafter acquired or arising, and wherever located, together
with all parts thereof (including spare parts), all accessories
and accessions thereto, all books and records (including computer
records) directly related thereto, all proceeds thereof
(including, without limitation, proceeds in the form of Accounts
and insurance proceeds), and the additional collateral described
in Section 7(b) hereof.
(iv) "Loan Agreement" shall mean that certain WCMA NOTE, LOAN AND
SECURITY AGREEMENT NO. 582-07596 between Customer and MLBFS, as
the same may from time to time be or have been amended, extended
or supplemented.
(v) "Location of Tangible Collateral" shall mean the address of
Grantor set forth at the beginning of this Agreement, together
with any other address or addresses set forth on any exhibit
hereto as being a Location or Tangible Collateral.
(vi) "Obligations" shall mean all liabilities, indebtedness and
other obligations of Customer or Grantor to MLBFS, howsoever
created, arising or evidenced, whether now existing or hereafter
arising, whether direct or indirect, absolute or contingent, due
or to become due, primary or secondary or joint or several, and,
without limiting the foregoing, shall include interest accruing
after the filing of any petition in bankruptcy, and all present
and future liabilities, indebtedness and obligations of Customer
under the Loan Agreement and the agreements, instruments and
documents executed pursuant thereto, and of Grantor under this
Agreement.
(vii) "Permitted Liens" shall mean (A) liens for current
taxes not delinquent, other non-consensual liens arising in the
ordinary course of business for sums not due, and, if MLBFS"
rights to and interest in the Collateral are not materially and
adversely affected thereby, any such liens for taxes or other,
non-consensual liens arising in the ordinary course of business
being contested in good faith by appropriate proceedings; (B)
liens in favor of MLBFS; and (C) any other liens expressly
permitted in writing by MLBFS.
(b) OTHER TERMS. Except as otherwise defined herein, all terms
used in this Agreement which are defined in the Uniform
Commercial Code of Illinois ("UCC") shall have the meanings set
forth in the UCC.
2. COLLATERAL
(a) PLEDGE OF COLLATERAL. To secure payment and performance of
the Obligations, Grantor hereby pledges, assigns, transfers and
sets over to MLBFS, and grants to MLBFS a first lien and security
interest in and upon all of the Collateral, subject only to
Permitted Liens.
(b) LIENS. Except upon the prior written consent of MLBFS,
Grantor shall not create or permit to exist any lien, encumbrance
or security interest upon or with respect to any Collateral now
owned or hereafter acquired other than Permitted Liens.
(c) PERFORMANCE OF OBLIGATIONS. Grantor shall perform all of
its obligations owing on account of or with respect to the
Collateral; it being understood that nothing herein. and no
action or inaction by MLBFS, under this Agreement or otherwise,
shall be deemed an assumption by MLBFS of any of Grantor's said
obligations.
(d) NOTICE OF CERTAIN EVENTS. Grantor shall give MLBFS
immediate notice of any attachment, lien, judicial process,
encumbrance or claim affecting or involving $25,000.00 or more of
the Collateral.
(e) INDEMNIFICATION. Grantor shall indemnify, defend and save
MLBFS harmless from and against any and all claims, losses,
costs, expenses (including, without limitation, reasonable
attorneys' fees and expenses), demands, liabilities, penalties,
fines and forfeitures of any nature whatsoever which may be
asserted against or incurred by MLBFS arising out of or in any
manner occasioned by (i) the ownership, use, operation, condition
or maintenance of any Collateral, or (ii) any failure by Grantor
to perform any of its obligations hereunder; excluding, however,
from said indemnity any such claims, losses, etc. arising out of
the willful wrongful act or active gross negligence of MLBFS.
This indemnity shall survive the expiration or termination of
this Agreement as to all matters arising or accruing prior to
such expiration or termination.
(f) INSURANCE. Grantor shall insure all of the tangible
Collateral with an insurer or insurers reasonably acceptable to
MLBFS, under a policy or policies of physical damage insurance
reasonably acceptable to MLBFS providing that (i) losses will be
payable to MLBFS as its interests may appear pursuant to a
Lender's Loss Payable endorsement, and (ii) MLBFS will receive
not less than 10 days prior written notice of any cancellation;
and containing such other provisions as may be reasonably
required by MLBFS. Grantor shall maintain such other insurance as
may be required by law or otherwise reasonably required by MLBFS.
Grantor shall furnish MLBFS with a copy or certificate of each
such policy or policies and, prior to expiration or cancellation,
each renewal or replacement thereof.
(g) EVENT OF LOSS. Grantor shall at its expense promptly repair
all repairable damage to any tangible Collateral. in the event
that any tangible Collateral is damaged beyond repair, lost,
totally destroyed or confiscated (an "Event of Loss") and such
Collateral had a value prior to such Event of Loss of $25,000.00
or more, then, on or before the first to occur of (i) 90 days
after the occurrence of such Event of Loss, or (ii) 10 Business
Days after the date on which either Grantor or MLBFS shall
receive any proceeds of insurance on account of such Event of
Loss, or any underwriter of insurance on such tangible Collateral
shall advise either Grantor or MLBFS that it disclaims liability
in respect of such Event of Loss, Grantor shall, at Grantor's
option, either replace the Collateral subject to such Event of
Loss with comparable Collateral free of all liens other than
Permitted Liens (in which event Grantor shall be entitled to
utilize the proceeds of insurance on account of such Event of
Loss for such purpose, and may retain any excess proceeds of such
insurance), or pay to MLBFS on account of the Obligations an
amount equal to the actual cash value of such Collateral as
determined by either the applicable insurance company's payment
(plus any applicable deductible) or, in absence of insurance
company payment, as reasonably determined by MLBFS.
Notwithstanding the foregoing, if at the time of occurrence of
such Event of Loss or any time thereafter prior to replacement or
payment, as aforesaid, an Event of Default shall occur hereunder,
then MLBFS may at its sole option, exercisable at any time while
such Event of Default shall be continuing, require Grantor to
either replace such Collateral or make a payment on account of
the Obligations, as aforesaid.
(h) SALES AND COLLECTIONS. So long as no Event of Default shall
have occurred and is continuing, Grantor may in the ordinary
course of its business: (i) sell any inventory normally held by
Grantor for sale, (ii) use or consume any materials and supplies
normally held by Grantor for use or consumption, and (iii)
collect all of its Accounts. Grantor shall take such action with
respect to protection of its Inventory and the other Collateral
and the collection of its Accounts as MLBFS may from time to time
reasonably request.
(i) ACCOUNT SCHEDULES. Upon the request of MLBFS, made now or
at any time or times hereafter, Grantor shall deliver to MLBFS,
in addition to the other information required hereunder, a
schedule identifying, for each Account and all Chattel Paper
subject to MLBFS' security interests hereunder, each Account
Debtor by name and address and amount, invoice number and date of
each invoice. Grantor shall furnish to MLBFS such additional
information with respect to the Collateral, and amounts received
by Grantor as proceeds of any of the Collateral, as MLBFS may
from time to time reasonably request.
(j) LOCATION. Except for movements in the ordinary course of
its business, Grantor shall give MLBFS 30 days' prior written
notice of the placing at or movement of any tangible Collateral
to any location other than a Location of Tangible Collateral. In
no event shall Grantor cause or permit any tangible Collateral to
be removed from the United States without the express prior
written consent of MLBFS.
(k) ALTERATIONS AND MAINTENANCE. Except upon the prior written
consent of MLBFS, Customer shall not make or permit any material
alterations to any tangible Collateral which might materially
reduce or impair its market value or utility. Customer shall at
all times keep the tangible Collateral in good condition and
repair and shall pay or cause to be paid all obligations arising
from the repair and maintenance of such Collateral, as well as
all obligations with respect to each Location of Tangible
Collateral, except for any such obligations being contested by
Customer in good faith by appropriate proceedings.
3. REPRESENTATIONS AND WARRANTIES
Grantor represents and warrants to MLBFS that:
(a) GRANTOR. Grantor is a corporation, duly organized and
validly existing in good standing under the laws of the State of
Texas and is qualified to do business and in good standing in
each other state where the nature of its business or the property
owned by it make such qualification necessary.
(b) EXECUTION, DELIVERY AND PERFORMANCE. The execution,
delivery and performance by Grantor of this Agreement have been
duly authorized by all requisite action, do not and will not
violate or conflict with any law or other governmental
requirement, or any of the agreements, instruments or documents
which formed or governed Grantor, and do not and will not breach
or violate any of the provisions of, and will not result in a
default by Grantor under, any other agreement, instrument or
document to which it is a party or by which it or its properties
are bound.
(c) NOTICE OR CONSENT. Except as may have been given or
obtained, no notice to or consent or approval of any governmental
body or authority or other third party whatsoever (including,
without limitation, any other creditor) is required in connection
with the execution, delivery or performance by Grantor of this
Agreement.
(d) VALID AND BINDING. This Agreement is the legal, valid and
binding obligation of Grantor, enforceable against it in
accordance with its terms, except as enforceability may be
limited by bankruptcy and other similar laws affecting the rights
of creditors generally or by general principles of equity.
(e) FINANCIAL STATEMENTS. Except as expressly set forth in
Grantor's financial statements, all financial statements of
Grantor furnished to MLBFS have been prepared in conformity with
generally accepted accounting principles, consistently applied,
are true and correct, and fairly present the financial condition
of it as at such dates and the results of its operations for the
periods then ended; and since the most recent date covered by
such financial statements, there has been no material adverse
change in any such financial condition or operation.
(f) LITIGATION, ETC. No litigation, arbitration, administrative
or governmental proceedings are pending or threatened against
Grantor, which would, if adversely determined, materially and
adversely affect the financial condition or continued operations
of Grantor, or the liens and security interests of MLBFS
hereunder.
(g) TAXES. All federal, state and local tax returns, reports and
statements required to be filed by Grantor have been filed with
the appropriate governmental agencies and all taxes due and
payable by Grantor have been timely paid (except to the extent
that any such failure to file or pay will not materially and
adversely affect either the liens and security interests of MLBFS
hereunder or the financial condition or continued operations of
Grantor).
(h) COLLATERAL. Grantor has good and marketable title to the
Collateral, and, except for Permitted Liens: (i) none of the
Collateral is subject to any lien, encumbrance or security
interest, and (ii) upon the filing of all Uniform Commercial Code
financing statements executed by Grantor with respect to the
Collateral or a copy of this Agreement in the appropriate
jurisdiction(s) and/or the completion of any other action
required by applicable law to perfect is lien and security
interests, MLBFS will have valid and perfected first liens and
security interests upon all of the Collateral.
Each of the foregoing representations and warranties are
continuing and shall be deemed remade by Grantor concurrently
with each advance or extension of credit by MLBFS to Customer.
4. FINANCIAL AND OTHER INFORMATION
Grantor covenants and agrees that Grantor will furnish or cause
to be furnished to MLBFS during the term of this Agreement such
financial and other information as may be required by the Loan
Agreement or any other document evidencing the Obligations or as
MLBFS may from time to time reasonably request relating to
Grantor or the Collateral.
5. OTHER COVENANTS
Grantor further agrees during the term of this Agreement that:
(a) FINANCIAL RECORDS; INSPECTION. Grantor will: (i) maintain
complete and accurate books and records at its principal place of
business, and maintain all of its financial records in a manner
consistent with the financial statements heretofore furnished to
MLBFS, or prepared on such other basis as may be approved in
writing by MLBFS; and (ii) permit MLBFS or its duly authorized
representatives, upon reasonable notice and at reasonable times,
to inspect its properties (both real or personal), operations,
books and records.
(b) TAXES. Grantor will pay when due all taxes, assessments and
other governmental charges, howsoever designated, and all other
liabilities and obligations, except to the extent that any such
failure to pay will not materially and adversely affect either
the liens and security interests of MLBFS hereunder, or the
financial condition or continued operations of Grantor.
(c) COMPLIANCE WITH LAWS AND AGREEMENTS. Grantor will not
violate any law, regulation or other governmental requirement,
any judgment or order of any court or governmental agency or
authority, or any agreement, instrument or document to which it
is a party or by which it is bound, if any such violation will
materially and adversely affect either the liens and security
interests of MLBFS hereunder, or the financial condition or
continued operations of Grantor.
(d) CONTINUITY. Except upon the prior written consent of MLBFS,
which consent will not be unreasonably withheld: (i) Grantor will
not be a party to any merger or consolidation with, or purchase
or otherwise acquire all or substantially all of the assets or
stock of, or any material partnership or joint venture interest
in, any person or entity, or sell, transfer or lease all or any
substantial part of its assets if any such action causes a
material change in its control or principal business, or material
adverse change in the financial condition or operations, of
Grantor; (ii) Grantor will preserve its existence and good
standing in the jurisdictions of establishment and operation, and
will not operate in any material business other than a business
substantially the same as its business as of the date of
application by Customer for credit from MLBFS; and (iii) Grantor
will not cause or permit any material change in its controlling
ownership, controlling senior management or, except upon not less
than 30 days prior written notice to MLBFS, its name or principal
place of business.
6. EVENTS OF DEFAULT
The occurrence of any of the following events shall constitute an
"Event of Default" under this Agreement:
(a) DEFAULT UNDER LOAN AGREEMENT. An Event of Default shall
occur under the terms of the Loan Agreement.
(b) FAILURE TO PERFORM. Grantor shall default in the
performance or observance of any covenant or agreement on its
part to be performed or observed under this Agreement (not
constituting an Event of Default under any other clause of this
Section), and such default shall continue unremedied for 10
Business Days after written notice thereof shall have been given
by MLBFS to Grantor.
(c) BREACH OF WARRANTY. Any representation or warranty made by
Grantor contained in this Agreement shall at any time prove to
have been incorrect in any material respect when made.
(d) DEFAULT UNDER OTHER AGREEMENT. A default or Event of
Default by Grantor shall occur under the terms of any other
agreement, instrument or document with or intended for the
benefit of MLBFS, Xxxxxxx Lynch, Pierce, Xxxxxx 8 Xxxxx
Incorporated ("MLPF8S") or any of their affiliates, and any
required notice shall have been given and required passage of
time shall have elapsed.
(e) SEIZURE OR ABUSE OF COLLATERAL. The Collateral, or any
material part thereof, shall be or become subject to any levy,
attachment, seizure or confiscation which is not released within
10 Business Days.
(f) MATERIAL IMPAIRMENT. Any event shall occur which shall
reasonably cause MLBFS to in good faith believe that the prospect
of payment or performance by Grantor has been materially
impaired.
(g) ACCELERATION OF DEBT TO OTHER CREDITORS. Any event shall
occur which results in the acceleration of the maturity of any
indebtedness of $100,000.00 or more of Grantor to another
creditor under any indenture, agreement, undertaking, or
otherwise.
7. REMEDIES
(a) REMEDIES UPON DEFAULT. Upon the occurrence and during the
continuance of any Event of Default, MLBFS may at its sole option
do any one or more or all of the following, at such time and in
such order as MLBFS may in its sole discretion choose:
(i) ACCELERATION. MLBFS may declare all Obligations to be
forthwith due and payable, whereupon all such amounts shall be
immediately due and payable, without presentment, demand for
payment, protest and notice of protest, notice of dishonor,
notice of acceleration, notice of intent to accelerate or other
notice or formality of any kind, all of which are hereby
expressly waived.
(ii) EXERCISE RIGHTS OF SECURED PARTY. MLBFS may exercise any or
all of the remedies of a secured party under applicable law,
including, but not limited to, the UCC, and any or all of its
other rights and remedies under this Agreement.
(iii) POSSESSION. MLBFS may require Grantor to make the
Collateral and the records pertaining to the Collateral available
to MLBFS at a place designated by MLBFS which is reasonably
convenient or may take possession of the Collateral and the
records pertaining to the Collateral without the use of any
judicial process and without any prior notice to Grantor.
(iv) SALE. MLBFS may sell any or all of the Collateral at public
or private sale upon such terms and conditions as MLBFS may
reasonably deem proper, and MLBFS may purchase any Collateral at
any such public sale; and the net proceeds of any such public or
private sale and all other amounts actually collected or received
by MLBFS pursuant hereto, after deducting all costs and expenses
incurred at any time in the collection of the Obligations and in
the protection, collection and sale of the Collateral, will be
applied to the payment of the Obligations, with any remaining
proceeds paid to Grantor or whoever else may be entitled thereto,
and with Customer and each guarantor of Customer's obligations
remaining jointly and severally liable for any amount remaining
unpaid after such application.
(v) DELIVERY OF CASH, CHECKS, ETC. MLBFS may require Grantor to
forthwith upon receipt, transmit and deliver to MLBFS in the form
received, all cash, checks, drafts and other instruments for the
payment of money (properly endorsed, where required, so that such
items may be collected by MLBFS) which may be received by Grantor
at any time in full or partial payment of any Collateral, and
require that Grantor not commingle any such items which may be so
received by Grantor with any other of its funds or property but
instead hold them separate and apart and in trust for MLBFS until
delivery is made to MLBFS.
(vi) NOTIFICATION OF ACCOUNT DEBTORS. MLBFS may notify any
Account Debtor that its Account or Chattel Paper has been
assigned to MLBFS and direct such Account Debtor to make payment
directly to MLBFS of all amounts due or becoming due with respect
to such Account or Chattel Paper; and MLBFS may enforce payment
and collect, by legal proceedings or otherwise, such Account or
Chattel Paper.
(vii) CONTROL OF COLLATERAL. MLBFS may otherwise take control
in any lawful manner of any cash or noncash items of payment or
proceeds of Collateral and of any rejected, returned, stopped in
transit or repossessed goods included in the Collateral and
endorse Grantor name on any item of payment on or proceeds of the
Collateral, and, in connection therewith, MLBFS may notify the
postal authorities to change the address for delivery of mail
addressed to Grantor to such address as MLBFS may designate.
(b) SET-OFF. MLBFS shall have the further right upon the
occurrence and during the continuance of an Event of Default to
set-off, appropriate and apply toward payment of any of the
Obligations, in such order of application as MLBFS may from time
to time and at any time elect, any cash, credits, deposits,
accounts, securities and any other property of Grantor which is
in transit to or in the possession, custody or control of MLBFS,
MLBFS or any agent, bailee, or affiliate of MLBFS or MLPF8S,
including, without limitation, all securities accounts with
MLPF8S and all cash and securities therein or controlled thereby,
and all proceeds thereof. Grantor hereby collaterally assigns and
grants to MLBFS a security interest in all such property as
additional Collateral.
(c) REMEDIES ARE SEVERABLE AND CUMULATIVE. All rights and
remedies of MLBFS herein are severable and cumulative and in
addition to all other rights and remedies available at law or in
equity, and any one or more of such rights and remedies may be
exercised simultaneously or successively. Any notice required
under this Agreement or under applicable law shall be deemed
reasonably and properly given to Grantor if given at the address
and by any of the methods of giving notice set forth in this
Agreement at least 5 Business Days before taking any action
specified in such notice.
(d) NOTICES. To the fullest extent permitted by applicable law,
Grantor hereby irrevocably waives and releases MLBFS of and from
any and all liabilities and penalties for failure of MLBFS to
comply with any statutory or other requirement imposed upon MLBFS
relating to notices of sale, holding of sale or reporting of any
sale, and Grantor waives all rights of redemption or
reinstatement from any such sale. MLBFS shall have the right to
postpone or adjourn any sale or other disposition of Collateral
at any time without giving notice of any such postponed or
adjourned date. In the event MLBFS seeks to take possession of
any or all of the Collateral by court process, Grantor further
irrevocably waives to the fullest extent permitted by law any
bonds and any surety or security relating thereto required by any
statute, court rule or otherwise as an incident to such
possession, and any demand for possession prior to the
commencement of any suit or action.
8. MISCELLANEOUS
(a) NON-WAIVER. No failure or delay on the part of MLBFS in
exercising any right, power or remedy pursuant to this Agreement
shall operate as a waiver thereof, and no single or partial
exercise of any such right, power or remedy shall preclude any
other or further exercise thereof, or the exercise of any other
right, power or remedy. Neither any waiver of any provision of
this Agreement, nor any consent to any departure by Grantor
therefrom, shall be effective unless the same shall be in writing
and signed by MLBFS. Any waiver of any provision of this
Agreement and any consent to any departure by Grantor from the
terms of this Agreement shall be effective only in the specific
instance and for the specific purpose for which given. Except as
otherwise expressly provided herein, no notice to or demand on
Grantor shall in any case entitle Grantor to any other or further
notice or demand in similar or other circumstances.
(b) COMMUNICATIONS. All notices and other communications
required or permitted hereunder shall be in writing, and shall be
either delivered personally, mailed by postage prepaid certified
mail or sent by express overnight courier or by facsimile. Such
notices and communications shall be deemed to be given on the
date of personal delivery, facsimile transmission or actual
delivery of certified mail, or one Business Day after delivery to
an express overnight courier. Unless otherwise specified in a
notice sent or delivered in accordance with the terms hereof,
notices and other communications in writing shall be given to the
parties hereto at their respective addresses set forth at the
beginning of this Agreement, and, in the case of facsimile
transmission, to the parties at their respective regular
facsimile telephone number.
(c) COSTS, EXPENSES AND TAXES. Grantor shall pay or reimburse
MLBFS upon demand for: (i) all Uniform Commercial Code filing and
search fees and expenses incurred by MLBFS in connection with the
verification, perfection or preservation of MLBFS' rights
hereunder or in the Collateral; (ii) any and all stamp, transfer
and other taxes and fees payable or determined to be payable in
connection with the execution, delivery and/or recording of this
Agreement; and (iii) all reasonable fees and out-of-pocket
expenses (including, but not limited to, reasonable fees and
expenses of outside counsel) incurred by MLBFS in connection with
the enforcement of this Agreement or the protection of MLBFS'
rights hereunder, excluding, however, salaries and expenses of
MLBFS' employees. The obligations of Grantor under this paragraph
shall survive the expiration or termination of this Agreement and
the discharge of the other Obligations.
(d) RIGHT TO PERFORM OBLIGATIONS. If Grantor shall fail to do
any act or thing which it has covenanted to do under this
Agreement or any representation or warranty on the part of
Grantor contained in this Agreement shall be breached, MLBFS may,
in its sole discretion, after 5 Business Days written notice is
sent to Grantor (or such lesser notice, including no notice, as
is reasonable under the circumstances), do the same or cause it
to be done or remedy any such breach, and may expend its funds
for such purpose. Any and all reasonable amounts so expended by
MLBFS shall be repayable to MLBFS by Grantor upon demand, with
interest at the "Interest Rate" (as that term is defined in the
Loan Agreement or any document incorporated into the Loan
Agreement) during the period from and including the date funds
are so expended by MLBFS to the date of repayment, and any such
amounts due and owing MLBFS shall be additional Obligations. The
payment or performance by MLBFS of any of Grantor's obligations
hereunder shall not relieve Grantor of said obligations or of the
consequences of having failed to pay or perform the same, and
shall not waive or be deemed a cure of any Event of Default.
(e) FURTHER ASSURANCES. Grantor agrees to do such further acts
and things and to execute and deliver to MLBFS such additional
agreements, instruments and documents as MLBFS may reasonably
require or deem advisable to effectuate the purposes of this
Agreement, or to establish, perfect and maintain MLBFS' security
interests and liens upon the Collateral, including, but not
limited to: (i) executing financing statements or amendments
thereto when and as reasonably requested by MLBFS; and (ii) if in
the reasonable judgment of MLBFS it is required by local law,
causing the owners and/or mortgagees of the real property on
which any Collateral may be located to execute and deliver to
MLBFS waivers or subordinations reasonably satisfactory to MLBFS
with respect to any rights in such Collateral.
(f) BINDING EFFECT. This Agreement shall be binding upon Grantor
and its successors and assigns, and shall inure to the benefit of
MLBFS and its successors and assigns.
(g) HEADINGS. Captions and section and paragraph headings in
this Agreement are inserted only as a matter of convenience, and
shall not affect the interpretation hereof.
(h) GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Illinois.
(i) SEVERABILITY OF PROVISIONS. Whenever possible, each
provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law. Any provision
of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only
to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any
other jurisdiction.
(j) TERM. This Agreement shall become effective upon acceptance
by MLBFS, and, subject to the terms hereof, shall continue in
effect so long thereafter as either MLBFS shall be committed to
advance funds or extend credit to Customer or there shall be any
Obligations outstanding.
(k) INTEGRATION. THIS WRITTEN AGREEMENT CONSTITUTES THE ENTIRE
UNDERSTANDING AND REPRESENTS THE FULL AND FINAL AGREEMENT BETWEEN
THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR WRITTEN AGREEMENTS OR
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
NO AMENDMENT OR MODIFICATION OF THIS AGREEMENT SHALL BE EFFECTIVE
UNLESS IN A WRITING SIGNED BY BOTH MLBFS AND GRANTOR.
(k) JURISDICTION; WAIVER. GRANTOR ACKNOWLEDGES THAT THIS
AGREEMENT IS BEING ACCEPTED BY MLBFS IN PARTIAL CONSIDERATION OF
MLBFS' RIGHT AND OPTION, IN ITS SOLE DISCRETION, TO ENFORCE THIS
AGREEMENT IN EITHER THE STATE OF ILLINOIS OR IN ANY OTHER
JURISDICTION WHERE GRANTOR OR ANY COLLATERAL FOR THE OBLIGATIONS
MAY BE LOCATED. GRANTOR CONSENTS TO JURISDICTION IN THE STATE OF
ILLINOIS AND VENUE IN ANY STATE OR FEDERAL COURT IN THE COUNTY OF
XXXX FOR SUCH PURPOSES, AND GRANTOR WAIVES ANY AND ALL RIGHTS TO
CONTEST SAID JURISDICTION AND VENUE. GRANTOR FURTHER WAIVES ANY
RIGHTS TO COMMENCE ANY ACTION AGAINST MLBFS IN ANY JURISDICTION
EXCEPT IN THE COUNTY OF XXXX AND STATE OF ILLINOIS. MLBFS AND
GRANTOR HEREBY EACH EXPRESSLY WAIVE ANY AND ALL RIGHTS TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
EITHER OF THE PARTIES AGAINST THE OTHER PARTY WITH RESPECT TO ANY
MATTER RELATING TO, ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THE LOAN AGREEMENT, THIS AGREEMENT AND/0R ANY OF THE TRANSACTIONS
WHICH ARE THE SUBJECT MATTER OF THE LOAN AGREEMENT OR THIS
AGREEMENT.
IN WITNESS WHEREOF, this Agreement has been executed as of the
day and year first above written.
C.A. XXXXXX MAINTENANCE, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
----------------------------------------
Signature (1) Signature (2)
Xxxxxxx X. XxXxxxxx
--------------------------------------------
Printed Name Printed Name
President
--------------------------------------------
Title Title
Accepted at Chicago, Illinois:
XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC.
By: /s/ [illegible]
--------------------------------
