EXHIBIT 10.8
COMMERCIAL SECURITY AGREEMENT
Principal: $1,500,000.00
Loan Date: 01-04-1999
Maturity: 08-31-1999
Loan No:
Call:
Collateral:
Account:
Officer:
Borrower: MICRONETICS WIRELESS, INC.
Lender: BANK XX XXX XXXXXXXXX
00 XXXXXXXXX XXXXX
000 XXXXXXXX XXXXXX
XXXXXX, XX 00000
XXXXXXXXXX, XX 00000
THIS COMMERCIAL SECURITY AGREEMENT is entered into between
MICRONETICS WIRELESS, INC. (referred to below as "Grantor"); and
BANK OF NEW HAMPSHIRE (referred to below as "Lender"). For
valuable consideration, Grantor grants to Lender a security
interest in the Collateral to secure the Indebtedness and agrees
that Lender shall have the rights stated in this Agreement with
respect to the Collateral, in addition to all rights which Lender
may have by law.
DEFINITIONS. The following words shall have the following meanings
when used in this Agreement. Terms not otherwise defined in this
Agreement shall have the meanings attributed to such terms in the
Uniform Commercial Code. All references to dollar amounts shall
mean amounts in lawful money of the United States of America.
Agreement. The word "Agreement" means this Commercial Security
Agreement, as this Commercial Security Agreement may be amended or
modified from time to time, together with all exhibits and
schedules attached to this Commercial Security Agreement from time
to time.
Collateral. The word "Collateral" means the following described
property of Grantor, whether now owned or hereafter acquired,
whether now existing or hereafter arising, and wherever located:
All inventory, chattel paper, accounts, equipment and general
intangibles.
In addition, the word "Collateral" includes all of the following,
whether now owned or hereafter acquired, whether now existing or
hereafter arising, and wherever located:
(a) All attachments, accessions, accessories, tools, parts,
supplies, and additions to and all replacements of and
substitutions for any property described above.
(b) All products and produce of any of the property described
in this Collateral section.
(c) All accounts, general intangibles, instruments rents,
monies, payments, and all other rights, arising out of a sale,
lease, or other disposition of any of the property described in
this Collateral Section.
(d) All proceeds (including insurance proceeds) from the
sale, destruction, loss, or other disposition of any of the
property described in this Collateral section.
(e) All records and data to any of the property described in
this Collateral section, whether in the form of a writing,
photograph, microfilm, or electronic media, together with all of
Grantor's right, title, and interest in and to all computer
software required to utilized, create, maintain, and process any
such records or data on electronic media.
Event of Default. The words :Event of Default" mean and includes
without limitation any of the Events of Default set forth below in
the Section titled "Events of Default."
Grantor. The word "Grantor" means MICRONETICS WIRELESS, INC., its
successors and assigns.
Guarantor. The word "Guarantor" means and includes without each
and all of the guarantors, sureties, and accommodation parties in
connection with the indebtedness.
Indebtedness. The word "Indebtedness" means the indebtedness
evidenced by the Note, including all principal and interest,
together with all other indebtedness and costs and expenses for
which Grantor is responsible under this Agreement or under any of
the Related Documents. In addition, the word "Indebtedness"
includes all other obligations, debts and liabilities, plus
interest thereon, of Grantor, or any one or more of them, to
Lender, as well as all claims by Lender against Grantor, or any or
more of them, whether existing now or later; whether they are
voluntary or involuntary, due or not due, direct or in direct,
absolute or contingent liquidated or unliquidated; whether Grantor
may be liable individually or jointly with others; whether Grantor
may be obligated as guarantor, surely, accommodation party or
otherwise; whether recovery upon such indebtedness may be or
hereafter may become barred by statute of limitations; and whether
such indebtedness may be or hereafter may become otherwise
unenforceable.
Lender. The word "Lender" means BANK OF NEW HAMPSHIRE, its
successors and assigns.
Note. The Word "Note" means the note or credit agreement dated
January 4, 1999, in the principal amount of $1,500,000.00 from
MICRONETICS WIRELESS, INC. to Lender, together with all renewals
of, intentions of, modifications of, refinancing of, considerations
of and substitutions for the note or credit agreement.
Related Documents. The words " Related Documents" mean and include
without limitation all promissory notes, credit agreements, loan
agreements, environmental agreements, guaranties, security
agreements, mortgages, deeds of trust, and all other instruments,
agreements and documents, whether now or hereafter existing,
executed in connection with the indebtedness.
RIGHT OF SETOFF. Grantor hereby grants Lender a contractual
security interest in and conveys, delivers, pledges, and transfers
all of Grantor's right, title and interest in and to Grantor's
account with Lender (whether checking, savings, or some other
account), including all accounts held jointly with someone else and
all accounts Grantor may open in the future, excluding, however,
all XXX and Xxxxx accounts, and all trust accounts for which the
grant of a security interest would be prohibited by law. Grantor
authorizes Lender, to the extent permitted by applicable law, to
charge or setoff all indebtedness against any and all such
accounts.
OBLIGATIONS OF GRANTOR. Grantor warrants and covenants to Lender
as follows:
Organization. Grantor is a corporation which is duly organized,
validly existing and in good standing under the laws of the State
of New Hampshire. Grantor has its chief executive office at 00
XXXXXXXXX XXXXX, XXXXXX, XX 00000. Grantor will notify Lender of
any change in the location of Grantor's chief executive office.
Authorization. The executive, delivery, and performance of this
Agreement by Grantor have been duly authorized by all necessary
action by Grantor and do not conflict with, result in a violation
of, or constitute a default under (a) any provision of its
articles of incorporation or organization, or bylaws, or any
agreement or other instrument binding upon Grantor or (b) any law,
governmental regulation, court decree, or order applicable to
Grantor.
Perfection of Security Interest. Grantor agrees to execute such
financing statements and to take whatever other actions are
requested by Lender to perfect and continue Lender's security
interest in the Collateral. Upon request of Lender, Grantor will
deliver to Lender any and all of the documents evidencing or
constituting the Collateral, and Grantor will note Lender's
interest upon any and all chattel paper if not delivered to Lender
for possession by Lender. Grantor hereby appoints Lender as its
irrevocable attorney-in-fact for the purpose of executing any
documents necessary to perfect or to continue the security interest
granted in this Agreement. Lender may at any time, and without
further authorization from Grantor, file a carbon, photographic or
other reproduction of any financing statement for use as a
financing statement. Grantor will reimburse Lender for all
expenses for the perfection and the continuation of the perfection
of Lender's security interest in the Collateral. Grantor promptly
will notify Lender before any change in Grantor's name including
any change to the assumed business names of Grantor. This is a
continuing Security Agreement and will continue in effect even
though all or any part of the indebtedness is paid in full and even
though for a period of time Grantor may not be indebted to Lender.
No Violation. The executive and delivery of this Agreement will
not violate any law or agreement governing Grantor or to which
Grantor is a party, and its certificate or articles of
incorporation and bylaws do not prohibit any term or condition of
this Agreement.
Enforceability of Collateral. To the extent the Collateral consist
of accounts, chattel paper, or general intangibles, the Collateral
is enforceable in accordance with its terms, is genuine, and
complies with applicable laws concerning form, content and manner
of preparation and execution, and all persons appearing to be
obligated on the Collateral have and capacity to contract and are
in fact obligated as they appear to be on the Collateral. At the
time any account becomes subject to a security interest in favor
of Lender, the account shall be a good and valid account
representing an undisputed, bona fide indebtedness incurred by the
account debtor, for merchandise held subject to delivery
instructions or therefore shipped or delivered pursuant to a
contract of sale, or for services therefore performed by Grantor
with or for the account debtor; there shall be no setoff or
counterclaims against any such account; and no agreement under
which any deduction or discounts may be claimed shall have been
made with the account debtor except those disclosed to Lender in
writing.
Location of the Collateral. Grantor, upon request of Lender, will
deliver to Lender in form satisfactory to Lender a schedule of real
properties and Collateral locations to Grantor's operations,
including without limitation the following: (a) all real property
owned or being purchased by Grantor; (b) all real property being
rented or leased by Grantor; (c) all storage facilities owned,
rented, leased, or being used by Grantor; and (d) all other
properties where Collateral is or may be located. Excepted in the
ordinary course of its business, Grantor shall not remove the
Collateral from its existing locations without the prior written
consent of Lender.
Removal of Collateral. Grantor shall keep the Collateral (or to
the extent the Collateral consists of intangible property such as
accounts, the records concerning the Collateral) at Grantor's
address show above, or at such other locations as are acceptable to
Lender. Excepts in the ordinary course of its business, including
the sales of inventory, Grantor shall not remove the Collateral
from its existing locations without the prior written consent of
Lender. To the extent that the Collateral consists of vehicles, or
other titled property, Grantor shall not take or permit any action
which would require application for certificates of title for the
vehicles outside the State of New Hampshire, without the prior
written consent of Lender.
Transactions involving Collateral. Except for inventory sold or
accounts collected in the ordinary course of Grantor's business,
Grantor shall not sell, offer, or otherwise transfer or dispose of
the Collateral. While Grantor is not default under this Agreement,
Grantor may sell inventory, but only in the ordinary course of its
business and only to buyers who qualify as a buyer in the ordinary
course of business. A sale in the ordinary course of Grantor's
business does not include a transfer in partial or total
satisfaction of a debt or any bulk sale. Grantor shall not pledge,
mortgage, encumber or otherwise permit the Collateral to be subject
to any lien, security interest, encumbrance, or change, other than
the security interest provided for in this Agreement, without the
prior written consent of Lender. This includes security interest
even if junior in right to the security interest granted under this
Agreement. Unless waived by Lender, all proceeds from any
disposition of the Collateral (for whatever reason) shall be held
in trust for Lender and shall not be commingled with any other
funds; provided however this requirements shall not constitute
consent by Lender to any sale or other disposition. Upon receipt,
Grantor shall immediately deliver any such proceeds to Lender.
Title. Grantor represents and warrants Lender that it holds good
and marketable title to the Collateral, free and clear of all
license and encumbrances except for the lien of this Agreement. No
financing statement covering any of the Collateral is on any public
office other than those which reflect the security interest created
by this Agreement or to which Lender has specifically consented.
Grantor shall defend Lender's right in the Collateral against the
claims and demands of all other persons.
Collateral Schedules and Locations. As often as Lender shall
require, and insofar as the Collateral consists of accounts and
general intangibles, Grantor shall deliver to Lender schedules of
such Collateral, including such information as Lender may require,
including without limitation names and address of account debtors
and aging of accounts and general intangibles. Insofar as the
Collateral consists of inventory and equipment, Grantor shall
deliver to Lender, as often as Lender shall require, such lists,
descriptions, and designations of such Collateral as Lender may
require to identify the nature, extent, and location of such
Collateral. Such information shall be submitted for Grantor and
each of its subsidiaries or related companies.
Maintenance and Inspection of Collateral. Grantor shall maintain
all tangible Collateral in good condition and repair. Grantor will
not commit or permit damage to or destruction of the Collateral or
any part of the Collateral. Lender and its designated
representatives and agents shall have the right at all reasonable
times to examine, inspect, and audit the Collateral wherever
located. Grantor shall immediately notify Lender of all cases
involving the return, rejection, repossession, loss or damage of or
to any Collateral; of any request for credit or adjustment or of
any other dispute arising with respect to the Collateral; and
generally of all happenings and events affecting the Collateral or
the value or the amount of the Collateral.
Taxes, Assessments and Liens. Grantor will pay when due all taxes,
assessments and liens upon the Collateral, its use or operation,
upon this Agreement, upon any promissory note or notes evidencing
the indebtedness, or upon any of the Related Documents. Grantor
may withhold any such payment or may elect to content any lien if
Grantor is in faith conducing an appropriate proceeding to contest
the obligation to pay and so long as Lender's interest in the
Collateral is not jeopardized in Lender's sole opinion. If the
Collateral is subjected to a lien which is not discharged within
fifteen (15) days, Grantor shall deposit with Lender cash, a
sufficient corporate surely bond or other security satisfactory to
Lender in an amount adequate to provide for the discharge of the
lien plus any interest, costs, attorneys' fees or other charges
that could accrue as a result of foreclosure or sale of the
Collateral. In any contest Grantor shall defend itself and Lender
and shall satisfy any final adverse judgement before enforcement
against the Collateral. Grantor shall name Lender as an additional
obligee under any surely bond furnished in the contest proceedings.
Compliance With Governmental Requirements. Grantor shall promptly
with all laws, ordinances, rules and regulation of all governmental
authorities, now or hereafter in effect, applicable to the
ownership, production, disposition, or use of the Collateral.
Grantor may contest in good faith any such law, ordinance or
regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Lender's interest in the
Collateral, in Lender's opinion, is not jeopardized.
Hazardous Substances. Grantor represents and warrants that the
Collateral never has been, and never will be so long as this
Agreement remains a liens on the Collateral, used for the
generation, manufacture, storage, transportation, treatment,
disposal, release or threatened release of any hazardous waste or
substance, as those terms are defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Super fund
Amendments and Reauthorization Act of 1986, Xxx.X.Xx. 99-499
("XXXX"), the Hazardous Materials Transaction Act, 49 U.S.C.
Section 1801, er seq., the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901, et seq., or other applicable state or
Federal laws, rules, or regulations adopted pursuant to any of the
foregoing. The terms "hazardous waste" and "hazardous substance"
shall also include, without limitation, petroleum and petroleum by-
products or any fraction thereof and asbestos. The representations
and warranties contained herein are based on Grantor's due
diligence in investigation the Collateral for hazardous wastes and
substances. Grantor hereby (a) releases and waives any future
claims against Lender for indemnity or contribution in the event
Grantor becomes liable for cleanup or other costs under any such
laws, and (b) agrees to indemnify and hold harmless Lender against
any and all claims and losses resulting from a breach of this
provision of this Agreement. This obligation to indemnify shall
survive the payment of the indebtedness and the satisfaction of
this Agreement.
Maintenance of Casualty Insurance. Grantor shall procure and
maintain all risks insurance, including without limitation fire,
theft and liability coverage together with such other insurance as
Lender may require with respect to the Collateral, in form,
amounts, coverage and basis reasonably acceptable to Lender and
issued by a company or companies reasonably acceptable to Lender.
Grantor, upon request of Lender, will deliver to Lender from time
to time the policies or certificates of insurance in form
satisfactory to lender, including stipulations that coverage will
not be cancelled or diminished without at least ten (10) days'
prior written notice to Lender and not including any disclaimer of
the insurer's liability for failure to give such a notice. Each
insurance policy also shall include an endorsement providing that
coverage in favor of Lender will not be impaired in any way by any
act, omission or default of Grantor or any other person. In
connection with all policies covering assets in with Lender holds
or is offered a security interest, Grantor will provide Lender with
such loss payable or other endorsements as Lender may require. If
Grantor at any time fails to obtain or maintain any insurance as
required under this Agreement, Lender may (but shall not be
obligated to) obtain such insurance as Lender deems appropriate,
including if it so chooses "single interest insurance," which will
cover only Lender's interest in the Collateral.
Application of Insurance Proceeds. Grantor shall promptly notify
Lender of any loss or damage to the Collateral. Lender may make
proof of loss if Grantor fails to do so within fifteen (15) days of
the casualty. All proceeds of any insurance on the Collateral,
including accrued proceeds thereon, shall be help by Lender as part
of the Collateral. If Lender consents to repair or replacement of
the damaged or destroyed Collateral, Lender shall, upon
satisfactory proof of expenditure, pay or reimburse Grantor from
the proceeds for the reasonable cost of repair or restoration. If
Lender does not consent to repair or replacement of the Collateral,
Lender shall retain amount of the proceeds to pay all of the
indebtedness, and shall pay the balance to Grantor. Any proceeds
which have nit been disbursed within six (6) months after their
receipt and which Grantor has not committed to the repair or
restoration of the Collateral shall be used to prepay the
indebtedness.
Insurance Reserves. Lender may require Grantor to maintain with
Lender reserves for payment of insurance premiums, which reserves
shall be created by monthly payments from Grantor of a sum
estimated by Lender to be sufficient to produce, at least fifteen
(15) days before the premium due date, amounts at least equal to
the insurance premiums to be paid. If fifteen (15) days before
payments is due, the reserve funds are insufficient, Grantor shall
upon demand pay any deficiency to Lender. The reserve funds shall
be held by Lender as a general deposit and shall constitute a non-
interest-bearing account which may satisfy by payment of the
insurance premiums required to be paid by Grantor as they become
due. Lender does not hold the reserve funds in trust for Grantor,
and Lender is not the agent of Grantor for payment of the insurance
premiums required to be paid by Grantor. The responsibility for
the payment of premiums shall remain Grantors sole responsibility.
Insurance Reports. Grantor, upon request of Lender, shall furnish
to Lender reports on each existing policy of insurance showing such
information as Lender may reasonably request including the
following: (a) the name of the Insurer; (b) the risks insured; (c)
the amount of the policy; (d) the property insured; (e) the then
current value on the basis of which insurance has been obtained and
the matter of determining that value; and (f) the expiration data
of the policy. In addition, Grantor shall upon request by Lender
(however not more often than annually) have an independent
appraiser satisfactory to Lender determine, as applicable, the cash
value or replacement cost of the Collateral.
GRANTOR'S RIGHT TO POSSESSION AND TO COLLECT ACCOUNTS. Until
default and except as otherwise provided below with respect to
accounts, Grantor may have possession of the tangible personal
property and benefits use of all the Collateral and may use it in
any lawful manner not inconsistent with this Agreement or the
Related Documents, provided that Grantor's right to possession and
beneficial use shall not apply to any Collateral where possession
of the Collateral by Lender is required by Law to perfect Lender's
security interest in such interest in such Collateral. Until
otherwise notified by Lender, Grantor may collect consisting of
accounts. At any time and even though no Event of Default exists,
Lender may exercise its rights to collect the accounts and to
notify account deports to make payments directly to Lender for
application to the indebtedness. If Lender at any time has
possession of any Collateral, whether before or after an Event of
Default, Lender shall be deemed to have exercised reasonable care
in the custody and preservation of the Collateral if Lender takes
such action for the purposes as Grantor shall request or as Lender,
in Lender's sole discretion, shall deem appropriate under the
circumstances, but failure to honor any request by Grantor shall
not of itself be deemed to be a failure to exercise reasonable
care. Lender shall not be required to take any steps necessary to
preserve any rights in the Collateral against prior parties, nor to
protect, preserve or maintain any security given to secure the
indebtedness.
EXPENDITURES BY LENDER. If not discharge or paid when due, Lender
may (but shall not be obligated to) discharge or pay any amounts
required to be discharge or paid by Grantor under this Agreement,
including without limitation all taxes, liens, security interest,
encumbrances, and other claims, at any time levied or placed on the
Collateral. Lender also may (but shall not be obligated to) pay
all costs for insuring, maintaining and preserving the Collateral.
All such expenditures incurred or paid by Lender for such purposes
will then bear interest at the rate changed under the Note from
the date incurred or paid by Lender to the date of repayment by
Grantor. All such expenses shall become a part of the indebtedness
and, at Lender's option, will (a) be payable on demand, (b) be
added to the balances of the Note and be apportioned among and be
payable with any installment payments to become due during either
(i) the term of any applicable insurance policy or (ii) the
remaining term of the Note, or (c) be treated as a balloon payment
which will be due and payable at the Note's maturity. This
Agreement also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which
Lender may be entitled upon the occurrence of an Event of Default.
EVENTS OF DEFAULT. Each of the following shall constitute an Event
of Default this Agreement:
Default on Indebtedness. Failure of Grantor to make any payment
when due on the indebtedness.
Other Defaults. Failure of Grantor to comply with or to perform
any other term, obligation, covenant or condition contained in this
Agreement or in any of the Related Documents or in any other
agreement between Lender and Grantor.
False Statements. Any warranty, representation or statement made
or furnished to Lender by or on behalf of Grantor under this
Agreement, the Note or the Related Documents is false or misleading
in any material respect, either now or at the time made or
furnished.
Defective Collateralization. This Agreement or any of the Related
Documents cases to be in full force and effect (including failure
of any Collateral documents to create a valid and perfected
security interest or lien) at any time and for any reason.
Insolvency. The dissolution or termination of Grantor's existence
as a going business, the insolvency of Grantor, the appointment of
a receiver for any part of Grantor's property, any assignment for
the benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency
laws by or against Grantor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Grantor or by
any governmental agency against the Collateral or any other
Collateral securing the indebtedness. This includes a garnishment
of any Grantor's deposit accounts with Lender.
Events Affecting Guarantor. Any of the preceding events occurs
with respect to any Guarantor of any of the indebtedness or such
Guarantor dies or becomes incompetent.
Adverse Changes. A material change occurs in Grantor's financial
condition, or Lender believes the prospect of payment or
performance of the indebtedness is impaired.
Insecurity. Lender, in good faith, deems itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs
under this Agreement, at any time thereafter, Lender shall have all
the rights of a secured party under the New Hampshire Uniform
Commercial Code. In additional and without limitation, Lender may
exercise any one or more of the following rights and remedies:
Accelerate Indebtedness. Lender may declare the entire
indebtedness, including any prepayment penalty which Grantor would
be required to pay, immediately due and payable, without notice.
Assemble Collateral. Lender may require Grantor to deliver to
Lender all or any portion of the Collateral and any and all
certificates of title and other documents relating to the
Collateral. Lender may require Grantor to assemble the Collateral
and make it available to lender at a place to be designed by
Lender. Lender also shall have full power to enter upon the
property of Grantor to take possession of an remove the Collateral.
If the Collateral contains other goods not covered by this
Agreement at the time repossession, Grantor agrees Lender may take
such other goods, provided that Lender makes reasonable efforts to
return them to Grantor after repossession.
Sell the Collateral. Lender shall have full power to sell, lease,
transfer, or otherwise deal with the Collateral or proceeds thereof
in its own name or that of Grantor. Lender may sell the Collateral
at public auction or private sale. Unless the COLLATERAL threatens
to decline speedily in value or is of a type customarily sold on a
recognized market, Lender will give Grantor reasonable notice of
the time after which any private sale or any other intended
disposition of the Collateral is to be made. The requirements of
reasonable notice shall be met if such notice is given at least ten
(10) days before the time of the sale or deposition. All expenses
relating to the disposition of the Collateral, including without
limitation the expenses of retaking, holding, insuring, preparing
for sale and selling the Collateral, shall become a part of the
indebtedness secured by this Agreement and shall be payable on
demand, with interest at the Note rate from date of expenditure
until repaid.
Appoint Receiver. To the extent permitted by applicable law,
Lender shall have the following rights and remedies regarding the
appointment of a receiver: (a) Lender may have a receiver appointed
as a matter of right, (b) the receiver may be an employee of Lender
and may serve without bond, and (c) all fees of the receiver and
his or her attorney shall become part of the indebtedness secured
by this Agreement and shall be payable on demand, with interest at
the Note rate from date of expenditure repaid.
Collect Revenues, Apply Accounts. Lender, either itself or through
a receiver, may collect the payments, rents, income, and revenues
from the Collateral. Lender may at any time in its discretion
transfer any Collateral into its own name or that its nominee and
receive the payments, rents, income, and revenues therefrom and
hold the same as security for the indebtedness or apply it to the
payment of the indebtedness in such order of preference as Lender
may determine. Insofar as the Collateral consists of accounts,
general intangibles, insurance policies, instruments, chattel
paper, chooses in action, or similar property, Lender may demand,
collect, receipt for, settle, compromise, adjust, xxx for,
foreclose, or realize on the Collateral as Lender may determine,
whether or not indebtedness or Collateral is then due. For these
purposes, Lender may, on behalf of and in the name of Grantor,
receive, open and dispose of mail addressed to Grantor; change any
address to which mail and payments are to be sent; and endorse
notes, checks, drafts, money orders, documents of title,
instruments and items pertaining to payments, shipment, or storage
of any Collateral. To facilitate collection, Lender may notify
account debtors and obligers on any Collateral to make payments
directly to Lender.
Obtain Deficiency. If Lender chooses to sell any or all of the
Collateral, Lender may obtain a judgement against Grantor for any
deficiency remaining on the indebtedness due to Lender after
application of all amounts received from the exercise of the rights
provided in this Agreement. Grantor shall be liable for a
deficiency even if the transaction described in this subsection is
a sale of accounts or chattel paper.
Other Rights and Remedies. Lender shall have all the rights and
remedies of a secured creditor under the provisions of the Uniform
Commercial Code, as may be amended from time to time. In addition,
Lender shall have and may exercise any or all other rights and
remedies it may have available at law, in equity, or otherwise.
Cumulative Remedies. All of Lender's rights and remedies, whether
evidenced by this Agreement or the Related Documents or by any
other writing, shall be cumulative and may be exercised singularly
or concurrently. Election by Lender to purse any remedy shall not
exclude pursuit of any other remedy, and an election to make
expenditures or to take action to perform an obligation of Grantor
under this Agreement, after Grantor's failure to perform, shall not
affect Lender's right to declare a default and to exercise its
remedies.
Miscellaneous Provisions. The following miscellaneous provisions
are a part of this Agreement.
Amendments. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties
as to the matters set forth in this Agreement. No alteration of or
amendment to this Agreement shall be effective unless given in
writing and signed by the party or parties sought to be charged or
bound by the alternation or amendment.
Applicable Law. This Agreement has been delivered to Lender and
accepted by Lender in the State of New Hampshire. If there is a
lawsuit, Grantor agrees upon Lender's request to submit to the
jurisdiction of the courts of the State of New Hampshire. This
Agreement shall be governed by and construed in accordance with the
laws of the State of New Hampshire.
Attorney's Fees; Expenses. Grantor agrees to pay upon demand all
of Lender's costs and expenses, including attorneys' fees and
Lender's legal expenses, incurred in connection with the
enforcement of this Agreement. Lender may pay someone else to help
enforce this Agreement, and Grantor shall pay the costs and
expenses of such enforcement. Costs and expenses include Lender's
fees and legal expenses whether or not there is a lawsuit,
including attorneys' fees and legal expenses for bankruptcy
proceedings (and including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-
judgement collection services. Grantor also pay all court costs
and such additional fees as may be directly by the court.
Caption Headings. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or
define the provision of this Agreement.
Notice. All notices required to be given this Agreement shall be
given in writing, may be sent by telefacsimile (unless otherwise
required by law), and shall be effective when actually delivered or
when deposited with a nationally recognized overnight courier or
deposited in the United States mail, first class, postage prepaid,
addressed to the party to whom the notice is to be given at the
address shown above. Any party may change its address for notices
under this Agreement by giving form written notice to the other
parties, specifying that the purpose of the notice is to change the
party's address. To the extent permitted by applicable law, if
there is more than one Grantor, notice to any Grantor will
constitute notice to all Grantors. For notice purposes, Grantor
will keep Lender informed at all times of Grantor's current
addresses(es).
Power of Attorney. Grantor hereby appoints as its true and lawful
attorney-in-fact, irrevocably, with full power of substitution to
do the following: (a) to demand, collect, receive, receipt for, xxx
and recover all sums of money or other property which may now or
hereafter become due, owing or payable from the Collateral; (b) to
execute, sign and endorse any and all claims, arising under the
Collateral, and, in the place and stead of Grantor, to execute and
deliver its release and settlement for the claim; and (d) to file
claim or claims or to take any action or institute or take part in
any proceedings, either in its own name or in the name of Grantor,
or otherwise, which in the discretion of Lender may seem to be
necessary or advisable. This power is given as security for the
Indebtedness, and the authority hereby conferred is and shall be
irrevocable and shall remain in full force and effect until
renounced by Lender.
Severability. If a court of competent jurisdiction finds any
provision of this Agreement to be invalid or unenforceable as to
any person or circumstance, such finding shall not render that
provision invalid or unenforceable as to any other persons or
circumstances. If feasible, any such offending provision shall be
deemed to be modified to be within the limits of enforceability or
validity; however, if the offending provision cannot be so
modified, it shall be stricken and all other provisions of this
Agreement in all other respects shall remain valid and enforceable.
Successor Interests. Subject to the limitations set forth above on
transfer of the Collateral, this Agreement shall be binding upon
and inure to the benefit of the parties, their successors and
assigns.
Wavier. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Agreement
shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that provision or any
other provision of this Agreement. No prior waiver by Lender, nor
any course of dealing between Lender and grantor, shall constitute
a waiver of any of Lender's rights or of any of Grantor's
obligation as to any future transactions. Whenever the consent of
Lender is required under this Agreement, the granting of such
consent by Lender in any instance shall not constitute continuing
to subsequent instance where such consent is required and in all
cases may be granted or withheld in the sole discretion of Lender.
GRANTOR ACKNOWLEDGE HAVING READ THE PROVISIONS OF THIS COMMERCIAL
SECURITY AGREEMENT, AND GRANTOR AGREES TO ITS TERMS. THIS
AGREEMENT IS DATED JANUARY 4, 1999.
GRANTOR:
MICRONETICS WIRELESS, INC.
By:
Xxxxxxx Xxxxx, President
LENDER:
BANK OF NEW HAMPSHIRE
By:
Authorized Officer
N:\XXXX\MICRO\CSA.A99
