SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement") is executed this 25th day of January,
1999, by XXXXXX TECHNOLOGIES, INC., a New York corporation (the "Obligor"), in
favor of DVI AFFILIATED CAPITAL, a division of DVI Financial Services Inc. (the
"Lender"). Obligor intending to be legally bound, hereby agrees as follows:
1. DEFINITIONS. For purposes of this Agreement,
1.1 "account", "account debtor", "chattel paper", "documents",
"equipment", "general intangibles", "goods", "instrument", "inventory" and
"proceeds" shall have the meanings given such terms in the Code.
1.2 "Approved Application" shall mean the aggregate pending lease
applications of Obligor credit approved by Lender that comply with all of
the following conditions: (a) all required documents for such lease have
been prepared in form and content acceptable to Lender, signed by all
parties and returned to Lender, and (b) Lender's purchase order has been
issued. Lender, in its sole and absolute discretion, at any time and from
time to time, by written notice to Obliger, may suspend the restrictions
imposed by this Section.
1.3 "Chief Executive Office" shall mean the place from which the main
part of the business operations of Obligor are managed. Obliger's current
Chief Executive Office is 00-00 00xx Xxxxxx, Xxxx Xxxxxx Xxxx, XX 00000.
1.4 "Code" shall mean the Uniform Commercial Code as adopted by the
Commonwealth of Pennsylvania, as the same may be amended from time to time.
1.5 "Collateral" shall mean the following: (a) all existing and after
acquired accounts, chattel paper, documents, general intangibles, and
contract rights of Obligor and all proceeds thereof, including without
limitation, and all general ledger sheets, tiles, records, customer lists,
books of account, invoices, bills, certificates or documents of ownership,
bills of sale, business papers, correspondence, credit files, tapes, cards,
computer runs and all other data and data storage systems whether in the
possession of the Obligor or any service bureau; and (b) all Obligor's
present and future inventory and equipment subject to Approved Applications
(including but not limited to goods held for sale or lease or furnished or
to be furnished under contracts for service, raw materials,
work-in-process, finished goods and goods used or consumed in Obligor's
business) whether owned, consigned or held on consignment, together with
all merchandise, component materials, supplies, packing, packaging and
shipping materials, and all returned, rejected or repossessed goods sold,
consigned, leased or otherwise furnished by Obliger and all products and
proceeds of any of the foregoing.
l.6 "DVI Indebtedness" shall mean all obligations and indebtedness of
Obliger to Lender, whether now or hereafter owing or existing, under the
Loan Documents.
1.7 "Event of Default" shall include any and all events described in
Section 7.
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1.8 "Loan Documents" shall mean that certain Note of even date
herewith given by Obligor to Lender in the original principal amount of
Five Million Dollars ($5,000,000.00) (the "Note") and all agreements,
documents and instruments, all agreements, documents and instruments
collateral thereto, together with all amendments, replacements, increases,
renewals and modifications thereof or thereto, including, without
limitation, this Agreement.
1.9 "Person" means an individual, a corporation or a government or any
agency or subdivision thereof or any other entity.
2. SECURITY INTEREST. Obligor grants to Lender a security interest in and
lien on the Collateral.
3. EFFECT OF GRANT. The security interests in and liens on the Collateral
granted to Lender by Obligor hereunder shall not be rendered void by the fact
that no DVI Indebtedness exists as of a particular date, but shall continue in
full force and effect until all DVI Indebtedness has been paid in full, Lender
has no agreement or commitment outstanding pursuant to which Lender may extend
credit to or on behalf of Obligor and Lender has executed and delivered
termination statements and/or releases of Lender with respect to the Collateral.
4. OBLIGATIONS SECURED. The Collateral and the continuing security
interests granted therein shall secure the DVI Indebtedness. IT IS THE EXPRESS
INTENTION OF OBLIGOR THAT THE COLLATERAL SHALL SECURE ALL EXISTING AND FUTURE
DVI INDEBTEDNESS.
5. REPRESENTATIONS. Obligor hereby represents and warrants as follows,
which representations and warranties shall be true and correct as of the date
hereof, at the time of the creation of any DVI Indebtedness and until all DVI
Indebtedness has been paid in full:
5.1 Title to Collateral. The Collateral is and will be owned by
Obligor free and clear of all liens and other encumbrances of any kind
(including liens or other encumbrances upon properties acquired or to be
acquired under conditional sales agreements or other title retention
devices), excepting only liens in favor of the Lender. Obligor will defend
the Collateral against any claims of all persons or entities other than the
Lender.
5.2 Governmental Consents. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the
part of Obligor is required in connection with the execution, delivery or
performance by Obligor of this Agreement or the consummation of the
transactions contemplated hereby.
5.3 Addresses. The portions of the Collateral which are tangible
(corporeal) property and Obligor's books and records pertaining thereto
will at all times be located at the addresses set forth on Schedule 5.3
attached hereto; or such other location determined by Obligor after prior
notice to Lender and delivery to Lender of any items requested by Lender to
maintain perfection and priority of Lender's security interests and liens
and access to Obligor's books and records.
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5.4 Taxes. Obligor has filed all tax returns which it is required to
file and has paid, or made provision for the payment of, all taxes which
have or may have become due pursuant to such returns or pursuant to any
assessment received by it, except such taxes (other than real estate taxes
which must be paid regardless of challenge), if any, as are being contested
in good faith and as to which adequate reserves have been provided. Such
tax returns are complete and accurate in all respects. Obligor does not
know of any proposed additional assessment or basis for any assessment of
additional taxes.
5.5 Intellectual Property. Obligor owns or possesses the irrevocable
right to use all of the patents, trademarks, service marks, trade names,
copyrights, licenses, franchises and permits and rights with respect to the
foregoing necessary to own and operate the Obligor's properties (including
the Collateral) and to carry on its business as presently conducted and
presently planned to be conducted without conflict with the rights of
others.
5.6 Accuracy of Representations and Warranties. No representation or
warranty by Obligor contained herein or in any certificate or other
document furnished by Obligor pursuant hereto or in connection herewith
fails to contain any statement of material fact necessary to make such
representation or warranty not misleading in light of the circumstances
under which it was made. There is no fact which Obligor knows or should
know and has not disclosed to Lender, which does or may materially and
adversely affect Obligor, or any of its operations.
6. COVENANTS. Obligor covenants and agrees that until the DVI Indebtedness
have been paid in full, Obligor shall:
6.1 Disposition of Assets. Not sell, lease, transfer or otherwise
dispose of all, substantially all, or any material portion of the
Collateral, except for sales of inventory in the ordinary course for fair
consideration.
6.2 Liens. Not create, incur or permit to exist any mortgage, pledge,
encumbrance, lien, security interest or charge of any kind (including liens
or charges upon properties acquired or to be acquired under conditional
sales agreements or other title retention devices) on its property or
assets, whether now owned or hereafter acquired, or upon any income or
profits therefrom, except as permitted hereunder or under the Loan
Documents.
6.3 Maintenance of Properties. Maintain, preserve, protect and keep or
cause to be maintained, preserved, protected and kept its real and personal
property used or useful in the conduct of its business in good working
order and condition, reasonable wear and tear excepted, and will pay and
discharge when due the cost of repairs to and maintenance of the same.
6.4 Insurance. Carry adequate insurance issued by responsible and
financially sound insurers acceptable to Lender, in amounts acceptable to
Lender (at least adequate to comply with any co-insurance provisions) and
against all such liability and hazards as are usually carried by entities
engaged in the same or a similar business similarly situated or as may be
required by Lender, Obligor will carry business interruption insurance in
such amounts as may be required by Lender. In the case of insurance on any
of the Collateral Obligor shall carry insurance in the full
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insurable value thereof and cause Lender to be named as insured mortgagee
with respect to all real property, loss payee (with a lender's loss payable
endorsement) with respect to all personal property, and additional insured
with respect to all liability insurance, as its interests nay appear with
thirty (30) days' notice to be given Lender by the insurance carrier prior
to cancellation or material modification of such insurance coverage.
Obligor shall cause to be delivered to Lender the insurance policies
therefor or in the alternative, evidence of insurance and at least thirty (30)
business days prior to the expiration of any such insurance, additional policies
or duplicates thereof or in the alternative, evidence of insurance evidencing
the renewal of such insurance and payment of the premiums therefor. Obligor
shall direct all insurers that in the event of any loss thereunder or the
cancellation of any insurance policy, the insurers shall make payments for such
loss and pay all returned or unearned premiums directly to Lender and not to
Obligor and Lender jointly.
In the event of any loss, Obligor will give Lender immediate notice thereof
and Lender may make proof of loss whether the same is done by Obligor. Lender is
granted a power of attorney by Obligor with full power of substitution to file
any proof of loss in Obligor's or Lender's name, to endorse Obligor's name on
any check, draft or other instrument evidencing insurance proceeds, and to take
any action or sign any document to pursue any insurance loss claim. Such power
being coupled with an interest is irrevocable.
In the event of any loss, Lender, at its option, may (i) retain and apply
all or any part of the insurance proceeds to reduce, in such order and amounts
as Lender may elect the DVI Indebtedness, or (ii) disburse all or any part of
such insurance proceeds to or for the benefit of Obligor for the purpose of
repairing or replacing Collateral after receiving proof satisfactory to Lender
of such repair or replacement, in either case without waiving or impairing the
DVI Indebtedness or any provision of this Agreement. Any deficiency thereon
shall be paid by Obligor to Lender upon demand. Obligor shall not take out any
insurance without having Lender named as loss payee or additional insured
thereon. Obligor shall bear the full risk of loss from any loss of any nature
whatsoever with respect to the Collateral.
6.5 Additional Documents and Future Actions. At its sole cost, take
such actions and provide Lender from time to time with such agreements,
financing statements and additional instruments, documents or information
as the Lender may in its discretion deem necessary or advisable to perfect,
protect and maintain the security interests in the Collateral, to permit
Lender to protect its interest in the Collateral, or to carry out the terms
of the Loan Documents. Obligor hereby authorizes and appoints Leader as its
attorney-in-fact with full power of substitution, to take such actions as
Lender may deem advisable to protect the Collateral and its interests
thereon and its rights hereunder, to execute on Obligor's behalf and file
at Obligor's expense financing statements, and amendments thereto, in those
public offices deemed necessary or appropriate by Lender to establish,
maintain and protect a continuously perfected security interest in the
Collateral, and to execute on Obligor's behalf such other documents and
notices as Lender may deem advisable to protect the Collateral and its
interests therein and its rights hereunder. Such power being coupled with
an interest is irrevocable. Obligor irrevocably authorizes the filing of a
carbon, photographic or other copy of this Agreement, or of a financing
statement, as a financing statement and agrees that such filing is
sufficient as a financing statement.
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6.6 Name or Address Change. Not change its name or address except upon
thirty (30) days prior written notice to Lender and delivery to Lender of
any items requested by Lender to maintain perfection and priority of
Lender's security interests and access to Obligor's books and records.
6.7 Inspections. Permit officers of Lender, or such persons as any of
them may designate, to visit and inspect any of the properties of Obligor,
examine (either by Lender's employees or by independent accountants) any of
the Collateral or other assets of Obligor, including the books of account
of Obligor, and discuss the affairs, finances and accounts of Obligor with
its officers and with its independent accountants, at such times as Lender
may desire.
6.8 Taxes: Claims for Labor and Materials. Pay or cause to be paid
when due all taxes, assessments, governmental charges or levies imposed
upon it or its income, profits, payroll or any property belonging to it,
including without limitation all withholding taxes, and all claims for
labor, materials and supplies which, if unpaid, might become a lien or
charge upon any of its properties or assets; provided that it shall not be
required to pay any such tax, assessment, charge, levy or claim so long as
the validity thereof shall be contested in good faith by appropriate
proceedings promptly initiated and diligently conducted by it, and neither
execution nor foreclosure sale or similar proceedings shall have been
commenced in respect thereof (or such proceedings shall have been stayed
pending the disposition of such contest of validity), and it shall have set
aside on its books, or at the request of Lender deposited with Lender,
adequate reserves with respect thereto.
6.9 Requested Information. With reasonable promptness, deliver to
Lender all financial information in respect of the condition, operation and
affairs of Obligor and the Collateral as Lender may reasonably request from
time to time.
7. EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an event of default hereunder:
7.1 The occurrence of any event of default or default under any of the
Loan Documents after expiration of any applicable notice and/or grace
period permitted in such documents;
7.2 The failure of Obligor to duly perform or observe any obligation,
covenant or agreement on its part contained herein;
7.3 All or any part of the Collateral are attached, seized, subjected
to a writ or distress warrant, or levied upon, or come within the
possession or control of any receiver, trustee, custodian or assignee for
the benefit of creditors;
7.4 Any representation or warranty of Obligor contained herein is
discovered to be untrue in any material respect or any statement,
certificate or data furnished by Obligor pursuant hereto is discovered to
be untrue in any material respect as of the date as of which the facts
therein set forth are stated or certified;
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7.5 A material and adverse change occurs in the value of the
Collateral;
7.6 Any material uninsured damage to, or loss, theft, or destruction
of any of the Collateral occurs;
7.7 The adjudication of Obligor as a bankrupt or insolvent, or the
entry of an Order for Relief against Obligor or the entry of an order
appointing a receiver or trustee for Obligor of any of its property or
approving a petition seeking reorganization or other similar relief under
the bankruptcy or other similar laws of the United States or any state or
any other competent jurisdiction;
7.8 A proceeding under any bankruptcy, reorganization, arrangement of
debt, insolvency, readjustment of debt or receivership law is filed by or
(unless dismissed within 60 days) against Obligor or Obligor makes an
assignment for the benefit of Creditors, or Obligor takes any action to
authorize any of the foregoing; and/or
7.9 The Collateral or the prospects of the payment of the Bank
Indebtedness is jeopardized or impaired as determined by Lender in good
faith.
8. REMEDIES OF LENDER.
8.1 Remedies. At the option of the Lender, upon the occurrence of an
Event of Default, or at any time thereafter:
(a) The entire unpaid principal of the DVI Indebtedness, or any
part thereof all interest accrued thereon, all fees due hereunder and
all other obligations of Obligor to Lender hereunder or under any
other agreement, note or otherwise arising will become immediately due
and payable without any further demand or notice;
(b) Lender may enter the premises occupied by Obligor and take
possession of the Collateral and any records relating thereto; and/or
(c) Lender may exercise each and every right and remedy granted
to it under the Loan Documents, under the Code and under any other
applicable law or at equity.
8.2 Sale or Other Disposition of Collateral. The sale, lease or other
disposition of the Collateral, or any part thereof, by Lender after an
Event of Default may be for cash, credit or any combination thereof and
Lender may purchase all or any part of the Collateral at public or, if
permitted by law, private sale, and in lieu of actual payment of such
purchase price, may set-off the amount of such purchase price against the
DVI Indebtedness then owing. Any sales of the Collateral may be adjourned
from time to time with or without notice. The Lender may cause the
Collateral to remain on Obligor's premises or otherwise or to be removed
and stored at premises owned by other persons, at Obligor's expense,
pending sale or other disposition of the Collateral. Obligor, at Lender's
request, shall assemble the Collateral consisting of inventory and tangible
assets and make such assets available to Lender at a place to be designated
by Lender.
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Lender shall have the right to conduct such sales on Obligor's premises, at
Obligor's expense, or elsewhere, on such occasion or occasions as Lender
may see fit. Any notice required to be given by Lender of a sale, lease or
other disposition or other intended action by Lender with respect to any of
the Collateral which is deposited in the United States mail, postage
prepaid and duly addressed to Obligor at the address specified in Section
11 below, at least five (5) business days prior to such proposed action,
shall constitute fair and reasonable notice to Obligor of any such action.
The net proceeds realized by Lender upon any such sale or other
disposition, after deduction for the expenses of retaking, holding,
storing, transporting, preparing for sale, selling or otherwise disposing
of the Collateral incurred by Lender in connection therewith and all other
costs and expenses related thereto including attorney fees, shall be
applied in such order as Lender, in its sole discretion, elects, toward
satisfaction of the DVI Indebtedness. Lender shall account to Obligor for
any surplus realized upon such sale or other disposition, and Obligor shall
remain liable for any deficiency. The commencement of any action, legal or
equitable, or the rendering of any judgment or decree for any deficiency
shall not affect Lender's security interest in the Collateral. Obligor
agrees that Lender has no obligation to preserve rights to the Collateral
against any other parties. Lender is hereby granted a license or other
right to use, after an Event of Default, without charge, Obligor's labels,
general intangibles, intellectual property, equipment, real estate,
patents, copyrights, rights of use of any name, trade secrets, trade names,
trademarks, service marks and advertising matter, or any property of a
similar nature, as it pertains to the Collateral, in completing production
of advertising for sale and selling any inventory or other Collateral and
Obligor's rights under all contracts, licenses, leases and franchise
agreements shall inure to Lender's benefit. Lender shall be under no
obligation to xxxxxxxx any assets in favor of Obligor or any other party or
against or in payment of any or all of the DVI Indebtedness.
8.3 Delay or Omission Not Waiver. Neither the failure nor any delay on
the part of Lender to exercise any right, remedy, power or privilege under
the Loan Documents upon the occurrence of any Event of Default or otherwise
shall operate as a waiver thereof or impair any such right, remedy, power
or privilege. No waiver of any Event of Default shall affect any later
Event of Default or shall impair any rights of Lender. No single, partial
or full exercise of any rights, remedies, powers and privileges by the
Lender shall preclude further or other exercise thereof. No course of
dealing between Lender and Obligor shall operate as or be deemed to
constitute a waiver of Lender's rights under the Loan Documents or affect
the duties or obligations of Obligor.
8.4 Remedies Cumulative; Consents. The rights, remedies, powers and
privileges provided for herein shall not be deemed exclusive, but shall be
cumulative and shall be in addition to all other rights, remedies, powers
and privileges in Lender's favor at law or in equity. Whenever the Lender's
consent or approval is required or permitted, such consent or approval
shall be at the sole and absolute discretion of Lender.
9. CERTAIN FEES, COSTS EXPENSES AND EXPENDITURES. Obligor agrees to pay on
demand all costs and expenses of Lender, including without limitation:
9.1 All costs and expenses in connection with any amendments,
extensions and increases to the Loan Documents (including, without
limitation, attorney's fees and expenses, and the cost of appraisals and
reappraisals of Collateral), and the cost of periodic lien searches and tax
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clearance certificates, as Lender deems advisable;
9.2 All Lender's, costs and expenses in connection with the
enforcement, protection and preservation of the Lender's rights or remedies
under the Loan Documents, or any other agreement relating to any
Obligations, or in connection with legal advice relating to the rights or
responsibilities of Lender (including without limitation court costs,
reasonable attorney's fees and expenses of accountants and appraisers); and
9.3 Any and all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of the Loan
Documents, and all liabilities to which Lender may become subject as the
result of delay in paying or omission to pay such taxes.
In the event Obligor shall fail to pay taxes, insurance, assessments, costs
or expenses which it is required to pay hereunder, or fails to keep the
Collateral free from security interests or lien (except as expressly permitted
herein), or fails to maintain or repair the Collateral as required hereby, or
otherwise breaches any obligations under the Loan Documents, Lender in its
discretion, may make expenditures for such purposes and the amount so expended
(including reasonable attorneys fees and expenses, filing fees and other
charges) shall be payable by Obligor on demand and shall constitute part of the
DVI Indebtedness.
In the event any action at law or in equity in connection with the Loan
Documents, the DVI Indebtedness or matters collateral thereto is terminated
adverse to Obligor, Obligor will pay all reasonable attorneys' fees and legal
costs incurred by Lender in connection with such actions.
With respect to any amount required to be paid by Obligor under this
Section, in the event Obligor fails to pay such amount on demand, Obligor shall
also pay to Lender interest thereon at the Default Rate (as defined in the Loan
Documents). Obligor's obligations under this Section shall survive termination
of this Agreement.
10. TIME IS OF THE ESSENCE. Time is of the essence in Obligor's performance
of its obligations under the Loan Documents.
11. COMMUNICATIONS AND NOTICES. All notices, requests and other
communications made or given in connection with this Agreement shall be in
writing and, unless receipt is stated herein to be required, shall be deemed to
have been validly given if delivered personally to the individual or division or
department to whose attention notices to a party are to be addressed, or by
private carrier, telecopy (with original forwarded by first class mail), or
registered or certified mail, return receipt requested, in all cases with
postage prepaid, addressed as follows, until some other address (or individual
or division or department for attention) shall have been designated by notice
given by one party to the other:
To Obligor:
Xxxxxx Technologies, Inc.
00-00 00xx Xxxxxx
Xxxx xxxxxx Xxxx, XX 00000
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Attention: President
Telecopy No.: 718-937-5962
To Lender:
DVI Affiliated Capital
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Operating Officer
Telecopy No.: 000-000-0000
With a copy to:
DVI, Inc.
000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Legal Department
Telecopy No.: 000-000-0000
12. LIMITATION ON LIABILITY. Obligor shall be responsible for and Lender is
hereby released from any claim or liability in connection with:
12.1 Safekeeping any Collateral;
12.2 Any loss or damage to any Collateral;
12.3 Any diminution in value of the Collateral; or
12.4 Any act or default of another person or entity.
Lender shall only be liable for any act or omission on its pert
constituting willful misconduct. In the event that Lender breaches its required
standard of conduct, Obligor agrees that its liability shall be only for direct
damages suffered and shall not extend to consequential or incidental damages. In
the event Obligor brings suit against Lender in connection with the transactions
contemplated hereunder and Lender is found not to be liable, Obligor will
indemnify and hold Lender harmless from all costs and expenses, including
attorney's fees, incurred by Lender in connection with such suit.
13. WAIVERS. In connection with any proceedings hereunder or in connection
with any of the DVI Indebtedness, including without limitation any action by
Lender in replevin, foreclosure or other court process or in connection with any
other action related to the DVI Indebtedness or the transactions contemplated
hereunder, Obligor waives:
13.1 all procedural errors, defects and imperfections in such
proceedings;
13.2 all benefits under any present or future laws exempting any
property,
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real or personal, or any part of any proceeds thereof from attachment, levy
or sale under execution, or providing for any stay of execution to be
issued on any judgment recovered in connection with the DVI Indebtedness or
in any replevin or foreclosure proceeding, or otherwise providing for any
valuation, appraisal or exemption;
13.3 all rights to inquisition on any real estate, which real estate
may be levied upon pursuant to a judgment obtained in connection with any
of the DVI Indebtedness and sold upon any writ of execution issued thereon
in whole or in part, in any order desired by Lender;
13.4 presentment for payment demand, notice of demand, notice of
nonpayment, protest and notice of protest of any of the DVI Indebtedness;
13.5 any requirement for bonds, security or sureties required by
statute, court rule or otherwise; and
13.6 any demand for possession of Collateral prior to commencement of
any suit.
14. JURISDICTION. Obligor hereby consents to the jurisdiction of any state
or federal court located within the Commonwealth of Pennsylvania, and
irrevocably agrees that, subject to the Lender's election, all actions or
proceedings relating to the Loan Documents or the transactions contemplated
hereunder may be litigated in such courts, and Obligor waives any objection
which it may have based on improper venue or forum non conveniens to the conduct
of any proceeding in any such court and waives personal service of any and all
process upon it, and consents that all such service of process be made by mail
or messenger directed to it at the address set forth in Section 11. Nothing
contained in this Section 14 shall affect the right of Lender to serve legal
process in any other manner permitted by law or affect the right of Lender to
bring any action or proceeding against Obligor or its property in the courts of
any other jurisdiction.
15. MISCELLANEOUS PROVISIONS.
15.1 Severability. The provisions of this Agreement and all other Loan
Documents are deemed to be severable, and the invalidity or
unenforceability of any provision shall not affect or impair the remaining
provisions which shall continue in full force and effect.
15.2 Headings. The headings of the Articles, Sections, paragraphs and
clauses of this Agreement are inserted for convenience only and shall not
be deemed to constitute a part of this Agreement.
15.3 Binding Effect. This Agreement and all rights and powers granted
hereby will bind and inure to the benefit of the parties hereto and their
respective permitted successors and assigns.
15.4 Amendment. No modification of this Agreement or any of the Loan
Documents shall be binding or enforceable unless in writing and signed by
or on behalf of the party
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against whom enforcement is sought.
15.5 Governing Law. This Agreement has been made, executed and
delivered in the Commonwealth of Pennsylvania and will be construed in
accordance with and governed by the laws of such Commonwealth (without
giving effect to any principles of conflicts of law).
15.6 No Third Party Beneficiaries. The rights and benefits of this
Agreement and the Loan Documents shall not inure to the benefit of any
third party.
15.7 Exhibits and Schedules. All exhibits and schedules attached
hereto are hereby made a part of this Agreement.
15.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by
signing any such counterpart.
15.9 No Joint Venture. Nothing contained herein is intended to permit
or authorize Obligor to make any contract on behalf of Lender, nor shall
this Agreement be construed as creating a partnership, joint venture or
making Lender an investor in Obligor.
15.10 Filing of Financing Statements. Copies or reproductions of this
document or of any financing statement may be filed as a financing
statement.
15.11 Waiver of Right to Trial by Jury. OBLIGOR AND LENDER WAIVE ANY
RIGHT TO TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a)
ARISING UNDER THIS AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED
TO HEREIN OR DELIVERED IN CONNECTION HEREWITH, OR (b) IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF OBLIGOR WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR
THERETO, IN EACH CASE WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
OBLIGOR AND LENDER AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT
ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF OBLIGOR
AND LENDER TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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IN WITNESS WHEREOF, the undersigned has executed this Security Agreement on
the date first above written.
XXXXXX TECHNOLOGIES, INC.
By:/s/ Xxxxx Xxxxxx
------------------------
Name: Xxxxx Xxxxxx
----------------------
Title: President and C.E.O.
---------------------
Lender hereby joins in this Agreement for the sole purpose of ratifying and
confirming its consent to the provisions contained in Section l5.11 above.
DVI FINANCIAL SERVICES INC.
By:________________________
Name:______________________
Tide:______________________
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