EXHIBIT 10.50
XXXXXX XXXX XXXXXXXXXX
000 XXXXX XXXXXXX SECURITY
XXXXXXXXXXX, XX 00000 AGREEMENT
812-331-3571 (LENDER)
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BORROWER OWNER OF COLLATERAL
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SYNDICATED BLOOMINGTON I LLC SYNDICATED FOOD SERVICE GROUP, INC.
ADDRESS ADDRESS
494 LA GUARDIA PLACE 000 XX XXXXXXX XXXXX
XXX XXXX, XX 00000 XXX XXXX, XX 00000
TELEPHONE NO. IDENTIFICATION NO. TELEPHONE NO. IDENTIFICATION NO.
407/361-6782 407/361-6782
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1. SECURITY INTEREST. For good and valuable consideration, Owner of
Collateral ("Owner") grants to Lender identified above a continuing security
interest in the Collateral described below to secure the obligations described
in this Agreement.
2. OBLIGATIONS. The Collateral shall secure the payment and performance of
all of Borrower's and Owner's present and future, joint and/or several, direct
and indirect, absolute and contingent, express and implied, indebtedness,
liabilities, obligations and covenants (cumulatively "Obligations") to Lender
including (without limitation) those arising under or pursuant to:
a. this Agreement and/or the following promissory notes and agreements:
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PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN
INTEREST RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
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VARIABLE $2,625,000.00 01/24/02 01/24/22 517043177
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b. [X] if checked, all other present or future, evidences of
indebtedness, agreements, instruments, guaranties or otherwise of
Borrower or Owner to Lender (WHETHER INCURRED FOR THE SAME OR
DIFFERENT PURPOSES THAN THE FOREGOING); and
c. all renewals, extensions, amendments, modifications, replacements or
substitutions to any of the foregoing.
3. COLLATERAL The Collateral shall consist of all of the
following-described property, as defined by the Uniform Commercial Code
presently or as hereafter amended or replaced, and Owner's rights, title and
interest in such property whether now or hereafter existing or now owned or
hereafter acquired by Owner and wheresoever located (collectively the
"Collateral"):
[X] All accounts and contract rights including, but not limited to, the
accounts and contract rights described on Schedule A attached hereto
and incorporated herein by this reference;
[X] All chattel paper including, but not limited to, the chattel paper
described on Schedule A attached hereto and incorporated herein by
this reference;
[X] All deposit accounts including, but not limited to, any deposit
accounts described on Schedule A attached hereto and incorporated
herein by this reference;
[X] All documents including, but not limited to, the documents described
on Schedule A attached hereto and incorporated herein by this
reference;
[ ] All equipment, including, but not limited to, the equipment
described on Schedule A attached hereto and incorporated herein by
this reference;
[ ] All fixtures, including, but not limited to, the fixtures located
or to be located on the real property described on Schedule B
attached hereto and incorporated herein by this reference;
[X] All general intangibles including, but not limited to, the general
intangibles described on Schedule A attached hereto and incorporated
herein by this reference;
[X] All instruments including, but not limited to, the instruments
described on Schedule A attached hereto and incorporated herein by
this reference;
[X| All inventory including, but not limited to, the inventory described
on Schedule A attached hereto and incorporated herein by this
reference;
[X] All investment property including, but not limited to, the
investment property described on Schedule A attached hereto and
incorporated herein by this reference;
[ ] All letter-of-credit rights including, but not limited to, the
letter-of-credit rights described on Schedule A attached hereto and
incorporated herein by this reference;
[ ] All as-extracted collateral including, but not limited to, all
minerals or the like and accounts resulting from sales at the
wellhead or minehead located on or related to the real property
described on Schedule B attached hereto and incorporated herein by
this reference;
[ ] All standing timber which is to be cut and removed under a
conveyance or contract for sale located on the real property
described on Schedule B attached hereto and incorporated herein by
this reference;
[X] Other: SEE SCHEDULE A
Any property described on Schedule A;
All monies, instruments, and savings, checking or other deposit accounts that
are now or in the future in Lender's custody or control (excluding XXX, Xxxxx,
trust accounts, and deposits subject to tax penalties if so assigned);
All monies or instruments pertaining to the Collateral described above;
All accessions, accessories, additions, amendments, attachments, modifications,
replacements and substitutions to any of the above;
All proceeds and products of any of the above; and
All supporting obligations of any of the above.
LP-IN206 (c) FormAtlon Technologies, Inc. (04/27/01) (000) 000-0000
4. OWNER'S TAXPAYER IDENTIFICATION. Owner's social security number federal
taxpayer identification number is: ___________________.
5. OWNER'S LOCATION. [ ] Owner is an individual and maintains his or her
principal residence in the state of:___________________________________. [X]
Owner is a Corporation duly incorporated, registered, formed or organized,
validly existing and in good standing under the laws of the state of: DELAWARE.
[ ] Owner is a______________________________________ and maintains its principal
place of business or, if it has more than one place of business, its chief
executive office in the state of________________________________________.
6. REPRESENTATIONS, WARRANTIES, AND COVENANTS. Owner represents, warrants
and covenants to Lender that:
(a) Owner is and shall remain the sole owner of the Collateral;
(b) Neither Owner nor, to the best of Owner's knowledge, any other party
has used, generated, released, discharged, stored, or disposed of
any hazardous waste, toxic substance, or related material
(cumulatively "Hazardous Materials") or transported any Hazardous
Materials across the property except as allowed by and in accordance
with applicable federal, state and local law and regulation. Owner
shall not commit or permit such actions to be taken in the future.
The term "Hazardous Materials" shall mean any substance, material,
or waste which is or becomes regulated by any governmental authority
including, but not limited to, (i) petroleum; (ii) asbestos; (iii)
polychlorinated biphenyls; (iv) those substances, materials or
wastes designated as a "hazardous substance" pursuant to Section 311
of the Clean Water Act or listed pursuant to Section 307 of the
Clean Water Act or any amendments or replacements to these statutes;
(v) those substances, materials or wastes defined as a "hazardous
waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act or any amendments or replacements to that statute; or
(vi) those substances, materials or wastes defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, or any
amendments or replacements to that statute. Owner is in compliance
in all respects with all applicable federal, state and local laws
and regulations, including, without limitation, those relating to
"Hazardous Materials", as defined herein, and other environmental
matters (the "Environmental Laws") and neither the federal
government nor any other governmental or quasi governmental entity
has filed a lien on the Collateral, nor are there any governmental,
judicial or administrative actions with respect to environmental
matters pending, or to the best of Owner's knowledge, threatened,
which involve the Collateral;
(c) Owner's location (Owner's place of organization, principal place of
business, or if more than one place of business, chief executive
office or principal residence) is in the state indicated in
paragraph 5. Owner shall not change its state of location without
first notifying Lender in writing;
(d) The Collateral is located and has been located during the four (4)
month period prior to the date hereof, at Owner's address described
above or any address described on Schedule C attached hereto and
incorporated herein by this reference. Owner shall immediately
advise Lender in writing of any change in or addition to the
foregoing addresses;
(e) Owner shall not become a party to any restructuring of its form of
business or participate in any consolidation, merger, liquidation or
dissolution without Lender's prior written consent;
(f) Owner's exact legal name is as set forth on the first page of this
Agreement. Owner shall not change such name or use any trade name
without Lender's prior written consent, and shall notify Lender of
the nature of any intended change of Owner's name, or the use of any
trade name, and the proposed effective date of such change;
(g) The Collateral is and shall at all times remain free of all tax and
other liens, security interests, encumbrances and claims of any kind
except for those belonging to Lender and those described on Schedule
D attached hereto and incorporated herein by this reference. Without
waiving the event of default as a result thereof, Owner shall take
any action and execute any document needed to discharge the
foregoing liens, security interests, encumbrances and claims;
(h) Owner shall defend the Collateral against all claims and demands of
all persons at anytime claiming any interest therein;
(i) Owner will cooperate with Lender in obtaining and maintaining
control with respect to all deposit accounts, investment property,
letter-of-credit rights and electronic chattel paper constituting
the Collateral;
(j) Owner shall provide Lender with possession, as appropriate, of all
chattel paper, documents, instruments and investment property
constituting the Collateral, and Owner shall promptly xxxx all
chattel paper, instruments, investment property and documents
constituting the Collateral to show that the same are subject to
Lender's security interest;
(k) All of Owner's accounts or contract rights; deposit accounts;
chattel paper; documents; general intangibles; instruments;
investment property; letter-of-credit rights; and federal, state,
county, and municipal government and other permits and licenses;
trusts, liens, contracts, leases, and agreements constituting the
Collateral are and shall be valid, genuine and legally enforceable
obligations and rights belonging to Owner against one or more third
parties and not subject to any claim, defense, set-off or
counterclaim of any kind;
(l) Owner shall not amend, modify, replace, or substitute any account;
chattel paper; deposit account; document; general intangible;
instrument; investment property; or letter-of-credit right
constituting the Collateral without the prior written consent of
Lender; Owner shall not create any chattel paper constituting the
Collateral without placing a legend on the chattel paper acceptable
to Lender indicating that Lender has a security interest in the
chattel paper;
(m) No person shall file an amendment that is a termination statement
for a financing statement concerning any of the Collateral without
the prior written consent of Lender, except to the extent permitted
by the Uniform Commercial Code presently or as hereafter amended or
replaced;
(n) No action or proceeding is pending against Owner which might result
in any material or adverse change in its business operations or
financial condition or materially affect the Collateral;
(p) Owner has not violated and shall not violate any applicable federal,
state, county or municipal statute, regulation or ordinance
(including but not limited to those governing Hazardous Materials)
which may materially and adversely affect its business operations or
financial condition or the Collateral;
(q) Owner shall, upon Lender's request, deposit all proceeds of the
Collateral into an account or accounts maintained by Owner or Lender
at Lender's institution;
(r) Owner will, upon receipt, deliver to Lender as additional Collateral
all securities distributed on account of the Collateral such as
stock dividends and securities resulting from stock splits,
reorganizations and recapitalizations; and
(s) This Agreement and the obligations described in this Agreement are
executed and incurred to finance income-producing business or
activity and not for consumer purposes.
7. SALE OF COLLATERAL. Owner shall not assign, convey, lease, sell,
license, exchange or transfer any of the Collateral to any third party without
the prior written consent of Lender except for sales of inventory to buyers in
the ordinary course of business.
8. FINANCING STATEMENTS AND OTHER DOCUMENTS. Owner shall at anytime and
from time to time take all actions and execute all documents required by Lender
to attach, perfect and maintain Lender's security interest in the Collateral and
establish and maintain Lender's right to receive the payment of the proceeds of
the Collateral including, but not limited to, executing any financing
statements, fixture filings, continuation statements, notices of security
interest and other documents required by the Uniform Commercial Code, presently
or as hereafter amended or replaced and other applicable law. Owner shall pay
the costs of filing such documents in all offices wherever filing or recording
is deemed by Lender to be necessary or desirable. Lender shall be entitled to
perfect its security interest in the Collateral by filing carbon, photographic
or other reproductions of this Agreement and/or the aforementioned documents
with any authority required by the Uniform Commercial Code, presently or as
hereafter amended or replaced or other applicable law. Owner authorizes Lender
to execute and file any financing statements, as well as extensions, renewals
and amendments of financing statements in such form as Lender may require to
perfect and maintain perfection of any security interest granted in this
Agreement.
9. INQUIRIES AND NOTIFICATION TO THIRD PARTIES. Owner hereby authorizes
Lender to contact any third party and make any inquiry pertaining to Owner's
financial condition or the Collateral. In addition, Lender is authorized to
provide oral or written notice of its security interest in the Collateral to any
third party and, following a default hereunder, to make payment to Lender.
10. LOCK BOX. COLLATERAL ACCOUNT. If Lender so requests at any time (whether
or not Owner is in default of this Agreement), Owner will direct each of its
account debtors to make payments due under the relevant account or chattel paper
directly to a special lock box to be under the control of Lender. Owner hereby
authorizes and directs Lender to deposit into a special collateral account to be
established and maintained with Lender all checks, drafts and cash payments
received in said lock box. All deposits in said collateral account shall
constitute proceeds of Collateral and shall not constitute payment of any
Obligation. At its option, Lender may, at any time, apply finally collected
funds on deposit in said collateral account to the payment of the Obligations in
such order of application as Lender may determine, or permit Owner to withdraw
all or any part of the balance on deposit in said collateral account. If a
collateral account is so established, Owner agrees that Owner will promptly
deliver to Lender, for deposit into said collateral account, all payments on
accounts and chattel paper received by Owner. All such payments shall be
delivered to Lender in the form received (except for Owner's endorsement if
necessary). Until so deposited, all payments on accounts and chattel paper
received by Owner shall be held in trust by Owner for and as the property of
Lender and shall not be commingled with any funds or property of Owner.
11. COLLECTION OF INDEBTEDNESS FROM THIRD PARTIES. Lender shall be entitled
to notify, and upon the request of Lender, Owner shall notify any account debtor
or other third party (including, but not limited to, insurance companies) to pay
any indebtedness or obligation owing to Owner and constituting the Collateral
(cumulatively "Indebtedness") to Lender whether or not a default exists under
this Agreement. Owner shall diligently collect the Indebtedness owing to Owner
from its account debtors and other third parties until the giving of such
notification. In the event that Owner possesses or receives possession of any
instruments or other remittances with respect to the Indebtedness following the
giving of such notification or if the instruments or other remittances
constitute the prepayment of any Indebtedness or the payment of any insurance
proceeds, Owner shall hold such instruments and other remittances in trust for
Lender apart from its other property, endorse the instruments and other
remittances to Lender, and immediately provide Lender with possession of the
instruments and other remittances. Lender shall be entitled, but not required,
to collect (by legal proceedings or otherwise), extend the time
LP-IN206 (c) FormAtlon Technologies, Inc. (04/27/01) (000) 000-0000
Page 2 of 6 _____________
for payment, compromise, exchange or any obligor or collateral upon,
or otherwise any of the Indebtedness whether or not an event of default
exists under this Agreement. Lender shall not be liable to Owner for any action,
error, mistake, omission or delay pertaining to the actions described in this
paragraph or any damages resulting therefrom.
12. POWER OF ATTORNEY. Owner hereby appoints Lender as its attorney-in-fact
to endorse Owner's name on all instruments and other remittances payable to
Owner with respect to the Indebtedness, including any items received by Lender
in any lockbox account, or other documents pertaining to Lender's actions in
connection with the Indebtedness. In addition, Lender shall be entitled, but not
required, to perform any action or execute any document required to be taken or
executed by Owner under this Agreement. Lender's performance of such action or
execution of such documents shall not relieve Owner from any obligation or cure
any default under this Agreement. The powers of attorney described in this
paragraph are coupled with an interest and are irrevocable.
13. USE AND MAINTENANCE OF COLLATERAL. Owner shall use the Collateral solely
in the ordinary course of its business, for the usual purposes intended by the
manufacturer (if applicable), with due care, and in compliance with the laws,
ordinances, regulations, requirements and rules of all federal, state, county
and municipal authorities including environmental laws and regulations and
insurance policies. Owner shall not make any alterations, additions or
improvements to the Collateral without the prior written consent of Lender.
Owner shall ensure that Collateral which is not now a fixture does not become a
fixture. Without limiting the foregoing, all alterations, additions and
improvements made to the Collateral shall be subject to the security interest
belonging to Lender, shall not be removed without the prior written consent of
Lender, and shall be made at Owner's sole expense. Owner shall take all actions
and make any repairs or replacements needed to maintain the Collateral in good
condition and working order.
14. LOSS OR DAMAGE. Owner shall bear the entire risk of any loss, theft,
destruction or damage (cumulatively "Loss or Damage") to all or any part of the
Collateral. In the event of any Loss or Damage, Owner will either restore the
Collateral to its previous condition, replace the Collateral with similar
property acceptable to Lender in its sole discretion, or pay or cause to be paid
to Lender the decrease in the fair market value of the affected Collateral.
Lender has no duty to collect any income accruing on the Collateral or to
preserve any rights relating to the Collateral.
15. INSURANCE. The Collateral will be kept insured for its full value
against all hazards including loss or damage caused by fire, collision, theft or
other casualty. If the Collateral consists of a motor vehicle. Owner will obtain
comprehensive and collision coverage in amounts at least equal to the actual
cash value of the vehicle with deductibles not to exceed $ 1.000.00. INSURANCE
MAY BE OBTAINED FROM AN AGENT OR INSURANCE COMPANY OF OWNER'S CHOICE, HOWEVER,
INSURANCE MUST BE OBTAINED FROM AN INSURANCE COMPANY LICENSED TO DO BUSINESS IN
THE STATE THE COLLATERAL IS LOCATED AND THE POLICY MUST BE IN A FORM AND CONTENT
ACCEPTABLE TO LENDER. Owner shall assign to Lender all rights to receive
proceeds of insurance not exceeding the amount owed under the obligations
described above, and direct the insurer to pay all proceeds directly to Lender.
The insurance policies shall require the insurance company to provide Lender
with at least 30 days' written notice before such policies are altered or
cancelled in any manner. The insurance policies shall name Lender as a loss
payee and provide that no act or omission of Owner or any other person shall
affect the right of Lender to be paid the insurance proceeds pertaining to the
loss or damage of the Collateral. In the event Owner fails to acquire or
maintain insurance, Lender (after providing notice as may be required by law)
may in its discretion procure appropriate insurance coverage upon the Collateral
and charge the insurance cost as an advance of principal under the promissory
note. Owner shall furnish Lender with evidence of insurance indicating the
required coverage. Lender may act as attorney-in-fact for Owner in making and
settling claims under insurance policies, cancelling any policy or endorsing
Owner's name on any draft or negotiable instrument drawn by any insurer.
16. INDEMNIFICATION. Lender shall not assume or be responsible for the
performance of any of Owner's obligations with respect to the Collateral under
any circumstances. Owner shall immediately provide Lender with written notice of
and hereby indemnifies and holds Lender and its shareholders, directors,
officers, employees and agents harmless from all claims, damages, liabilities
(including attorneys' fees and legal expenses), causes of action, actions, suits
and other legal proceedings (cumulatively "Claims") pertaining to its business
operations or the Collateral including, but not limited to, those arising from
Lender's performance of Owner's obligations with respect to the Collateral or
claims involving Hazardous Materials or other claims arising under Environmental
Laws. Owner, upon the request of Lender, shall hire legal counsel to defend
Lender from such Claims, and pay the attorneys' fees, legal expenses and other
costs to the extent permitted by applicable law, incurred in connection
therewith. In the alternative, Lender shall be entitled to employ its own legal
counsel to defend such Claims at Owner's cost.
17. TAXES AND ASSESSMENTS. Owner shall execute and file all tax returns and
pay all taxes, licenses, fees and assessments relating to its business
operations and the Collateral (including, but not limited to, income taxes,
personal property taxes, withholding taxes, sales taxes, use taxes, excise taxes
and workers' compensation premiums) in a timely manner.
18. INSPECTION OF COLLATERAL AND BOOKS AND RECORDS. Owner shall allow Lender
or its agents to examine, inspect and make abstracts and copies of the
Collateral and Owner's books and records pertaining to Owner's business
operations and financial condition or the Collateral during normal business
hours. Owner shall provide any assistance required by Lender for these purposes.
All of the signatures and information pertaining to the Collateral or contained
in the books and records shall be genuine, true, accurate and complete in all
respects. Owner shall note the existence of Lender's security interest in its
books and records pertaining to the Collateral.
19. DEFAULT. Owner shall be in default under this Agreement in the event
that Owner, Borrower or any guarantor:
(a) fails to make any payment under this Agreement or any other
indebtedness to Lender when due;
(b) fails to perform any obligation or breaches any warranty or covenant
to Lender contained in this Agreement or any other present or future
written agreement regarding this or any other indebtedness to
Lender;
(c) provides or causes any false or misleading signature or
representation to be provided to Lender;
(d) sells, conveys, or transfers rights in any Collateral without the
written approval of Lender, destroys, loses or damages such
Collateral in any material respect, or subjects such Collateral to
seizure or confiscation;
(e) seeks to revoke, terminate or otherwise limit its liability under
any continuing guaranty;
(f) has a garnishment, judgment, tax levy, attachment or lien entered or
served against Owner, Borrower, or any guarantor, or any of their
property;
(g) dies, becomes legally incompetent, is dissolved or terminated,
ceases to operate its business, becomes insolvent, makes an
assignment for the benefit of creditors, fails to pay any debts as
they become due, or becomes the subject of any bankruptcy,
insolvency or debtor rehabilitation proceeding;
(h) allows the Collateral to be used by anyone to transport or store
goods, the possession, transportation, or use of which, is illegal;
or
(i) causes Lender to deem itself insecure due to a significant decline
in the value of any of the Collateral or Lender, in good faith,
believes the prospect of payment or performance is impaired.
20. RIGHTS OF LENDER ON DEFAULT. If there is a default under this
Agreement, Lender shall be entitled to exercise one or more of the following
remedies without notice or demand (except as required by law):
(a) to declare the Obligations immediately due and payable in full;
(b) to collect the outstanding Obligations with or without resorting to
judicial process;
(c) to change Owner's mailing address, open Owner's mail, and retain any
instruments or other remittances constituting the Collateral
contained therein;
(d) to take possession of any Collateral in any manner permitted by law;
(e) to apply for and obtain, without notice and upon ex parte
application, the appointment of a receiver for the Collateral
without regard to Owner's financial condition or solvency, the
adequacy of the Collateral to secure the payment or performance of
the obligations, or the existence of any waste to the Collateral;
(f) to require Owner to deliver and make available to Lender any
Collateral at a place reasonably convenient to Owner and Lender;
(g) to sell, lease or otherwise dispose of any Collateral and collect
any deficiency balance with or without resorting to legal process;
(h) to set-off Owner's obligations against any amounts due to Owner
including, but not limited to, monies, instruments, and deposit
accounts maintained with Lender; and
(i) to exercise all other rights available to Lender under any other
written agreement or applicable law.
Lender's rights are cumulative and may be exercised together, separately, and in
any order. If notice to Owner of intended disposition of Collateral is required
by law, Lender will provide reasonable notification of the time and place of any
sale or intended disposition as required under the Uniform Commercial Code,
presently or as hereafter amended or replaced. Lender has no obligation to clean
up or otherwise prepare the Collateral for sale. Lender may comply with any
applicable state or federal law requirements in connection with a disposition of
the Collateral and compliance will not be considered adversely to affect the
commercial reasonableness of any sale of the Collateral. In the event that
Lender institutes an action to recover any Collateral or seeks recovery of any
Collateral by way of a prejudgment remedy in an action against Owner, Owner
waives the posting of any bond which might otherwise be required. Upon any
default, Owner shall segregate all proceeds of Collateral and hold such proceeds
in trust for Lender. Lender's remedies under this paragraph are in addition to
those available at common law, such as setoff.
21. APPLICATION OF PAYMENTS. Whether or not a default has occurred under
this Agreement, all payments made by or on behalf of Owner and all credits due
to Owner from the disposition of the Collateral or otherwise may be applied
against the amounts paid by Lender (including attorneys' fees and legal
expenses) in connection with the exercise of its rights or remedies described in
this Agreement and any interest thereon and then to the payment of the remaining
Obligations in whatever order Lender chooses.
LP-IN206 (c) FormAtlon Technologies, Inc. (04/27/01) (000) 000-0000
22. REIMBURSEMENT OF AMOUNT EXPENDED BY LENDER. Owner shall reimbursed
Lender for all amounts (including attorneys' fees and legal expenses) expended
by Lender In the performance of any action required to be taken by Owner or the
exercise of any right or remedy belonging to Lender under this Agreement,
together with interest thereon at the lower of the highest rate described in any
promissory note or credit agreement executed by Borrower or Owner or the highest
rate allowed by law from the date of payment until the date of reimbursement.
These sums shall be included in the definition of Obligations, shall be secured
by the Collateral identified in this Agreement and shall be payable upon demand.
23. ASSIGNMENT. Owner shall not be entitled to assign any of its rights,
remedies or obligations described in this Agreement without the prior written
consent of Lender. Consent may be withheld by Lender in its sole discretion.
Lender shall be entitled to assign some or all of its rights and remedies
described in this Agreement without notice to or the prior consent of Owner in
any manner.
24. MODIFICATION AND WAIVER. The modification or waiver of any of Owner's
Obligations or Lender's rights under this Agreement must be contained in a
writing signed by Lender. Lender may perform any of Owner's Obligations or delay
or fail to exercise any of its rights without causing a waiver of those
Obligations or rights. A waiver on one occasion shall not constitute a waiver on
any other occasion. Owner's Obligations under this Agreement shall not be
affected if Lender amends, compromises, exchanges, fails to exercise, impairs or
releases any of the obligations belonging to any Owner or third party or any of
its rights against any Owner, third party or collateral. Owner waives any right
it may have to require Lender to pursue any third person for any of the
Obligations.
25. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of Owner and Lender and their respective successors, assigns,
trustees, receivers, administrators, personal representatives, legatees, and
devisees.
26. NOTICES. Any notice or other communication to be provided under this
Agreement shall be in writing and sent to the parties at the addresses described
in this Agreement or such other address as the parties may designate in writing
from time to time.
27. SEVERABILITY. If any provision of this Agreement is invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
28. APPLICABLE LAW. This Agreement shall be governed by the laws of the
state of Indiana, except to the extent that the Uniform Commercial Code,
presently or as hereafter amended or replaced, provides for the application of
the law of the state of Owner's location, as indicated in paragraph 5. Unless
applicable law provides otherwise, Owner consents to the jurisdiction and venue
of any court selected by Lender in its discretion located in such state in the
event of any legal proceeding under this Agreement.
29. COLLECTION COSTS. To the extent permitted by law, Owner agrees to pay
collection costs, expenses, and reasonable attorneys fees and costs, incurred by
Lender in collecting any amount due or enforcing any right or remedy under this
Agreement whether or not suit is brought, including but not limited to,
expenses, fees, and costs incurred for collection, enforcement, realization on
collateral, construction, interpretation, and appearance in collection,
bankruptcy, insolvency, reorganization, post-judgment, and appellate
proceedings.
30. MISCELLANEOUS. This Agreement is executed for commercial purposes to
finance income-producing business or activity, and not for personal, family or
household purposes. Owner shall supply information regarding Owner's business
operations and financial condition or the Collateral in the form and manner as
requested by Lender from time to time. All information furnished by Owner to
Lender shall be true, accurate and complete in all respects. Owner and Lender
agree that time is of the essence. Owner waives presentment, demand for payment,
notice of dishonor and protest except as required by law. All references to
Owner in this Agreement shall include all parties signing below except Lender.
This Agreement shall be binding upon the heirs, successors and assigns of Owner
and Lender. If there is more than one Owner, their obligations under this
Agreement shall be joint and several. This Agreement shall remain in full force
and effect until Lender provides Owner with written notice of termination. This
Agreement represents the complete and integrated understanding between Owner and
Lender regarding the terms hereof.
31. WAIVER OF JURY TRIAL. LENDER AND OWNER HEREBY WAIVE ANY RIGHT TO A TRIAL
BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS SECURITY
AGREEMENT.
32. ADDITIONAL TERMS:
Owner acknowledges that Owner has read, understands, and agrees to the terms and
conditions of this Agreement.
Dated: JANUARY 24, 2002
LENDER: MONROE BANK
/s/ XXXXX X. XXXXXX
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XXXXX X. XXXXXX
VICE PRESIDENT
OWNER: SYNDICATED FOOD SERVICE GROUP, INC. OWNER:
By: ___________________________________ ____________________________________
XXXX XXXXXXXXX
SECRETARY
OWNER: OWNER:
_________________________________ ___________________________________
OWNER: OWNER:
_________________________________ ___________________________________
OWNER: OWNER:
_________________________________ ___________________________________
LP-IN206 (c) FormAtlon Technologies, Inc. (04/27/01) (000) 000-0000
Page 4 of 6
STATE OF INDIANA
) ss:
COUNTY OF Monroe )
Before me, the undersigned, a Notary Public in and for said County and
State, personally appeared Xxxxx X. Xxxxxx, Vice President of Monroe Bank, who
executed the foregoing Commercial Security Agreement in my presence and stated
that the representations contained therein are true.
Witness my hand and Notarial Seal this 24th day of January, 2002.
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------------
Notary Public Residing in Monroe County
Xxxxxxx X. Xxxxxxxx
--------------------------------------------------
Printed Signature
My Commission Expires: 9/22/06
STATE OF INDIANA )
)ss:
COUNTY OF_____________________)
Before me, the undersigned, a Notary Public in and for said County and
State, personally appeared _____________________________________________________
_________________________________, who executed the foregoing __________________
______________________________in my presence and stated that the representations
contained therein are true.
Witness my hand and Notarial Seal this_________ day of____________, _______.
__________________________________________________
Notary Public Residing in_________________ County
__________________________________________________
Printed Signature
My Commission Expires:_______________________
STATE OF INDIANA )
)ss:
COUNTY OF_____________________)
Before me, the undersigned, a Notary Public in and for said County and
State, personally appeared _____________________________________________________
_________________________, the________________________________of________________
________________________, a(n)_____________________________________________, who
executed the foregoing __________________________ for and on behalf of said
___________________________ in my presence and stated that the representations
contained therein are true.
Witness my hand and Notarial Seal this__________ day of ___________, ______.
__________________________________________________
Notary Public Residing in_________________ County
__________________________________________________
Printed Signature
My Commission Expires:_______________________
STATE OF INDIANA )
)ss:
COUNTY OF_____________________)
Before me, the undersigned, a Notary Public in and for said County and
State, personally appeared __________________________________________________,
the________________________________of________________________________________,
a(n)_____________________________________________________ , who executed the
foregoing __________________________ for and on behalf of said__________________
______________________ in my presence and stated that the representations
contained therein are true.
Witness my hand and Notarial Seal this _________day of _____________, _____.
__________________________________________________
Notary Public Residing in_________________ County
__________________________________________________
Printed Signature
My Commission Expires:_______________________
LP-IN206 (c) FormAtlon Technologies, Inc. (04/27/01) (000) 000-0000
SCHEDULE A
ALL ACCOUNTS, DOCUMENTS, CONTRACT RIGHTS, CHATTEL PAPER, INSTRUMENTS, GENERAL
INTANGIBLES, AND RIGHTS TO PAYMENT OF EVERY KIND NOW OWNED AND HEREAFTER
ACQUIRED ARISING OUT OF THE BUSINESS OF THE DEBTOR IN ANY GOODS OR SERVICE, THE
SALE OR LEASE OF WHICH SHALL HAVE GIVEN OR SHALL GIVE RISE TO ANY OF THE
FOREGOING WHICH IS CURRENTLY LOCATED AT 0000 XXXX XXXXXX XXXX, XXXXXXXXXXX,
XXXXXXX AND AT ANY FUTURE LOCATION.
ALSO,
ALL INVESTMENT PROPERTY AND INVENTORY, RAW MATERIALS, WORK IN PROGRESS, OR
MATERIALS USED OR CONSUMED IN DEBTOR'S BUSINESS, WHETHER NOW OWNED OR HEREAFTER
ACQUIRED AND ALL PRODUCTS AND PROCEEDS THEREOF, WHETHER IN POSSESSION OF THE
DEBTOR, A WAREHOUSEMAN, A BAILEE, OR ANY OTHER PERSON.
SCHEDULE B
Record Owner Name:
SCHEDULE C
SCHEDULE D
LP-IN206 (c) FormAtlon Technologies, Inc. (04/27/01) (000) 000-0000
Page 6 of 6__________
IN WITNESS WHEREOF, this addendum was executed as of the day and the
year first above written.
Monroe Bank
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Xxxxx X. Xxxxxx
Vice President
IN WITNESS WHEREOF, this document was executed as of the day and year first
above written.
SYNDICATED BLOOMINGTON I LLC
By: Syndicated Food Service Group, Inc.,
Managing Member
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxx
Secretary
ADDENDUM TO COMMERCIAL SECURITY AGREEMENT
This Addendum shall be deemed to supplement and modify the foregoing terms and
provisions of the Commercial Security Agreement to which it is attached. In the
event of any conflict between the terms and provisions of this Addendum and the
terms and provisions of said Security Agreement, the terms and provisions of
this Addendum shall control.
1. The address of the Borrower shall be c/o Proskauer Rose LLP, 0000
Xxxxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxxxx Xxx, Esq. And the address
of the Owner of the collateral shall be 0000 Xxxx Xxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxx, Attn: President (Xxxxxxx Xxxxxx).
2. The Collateral, as defined in Section 3, shall secure the payment and
performance of all of Borrower's and Owner's present and future, direct
and indirect, absolute and contingent, express and implied Obligations
to Lender arising under or pursuant to the loan agreement described in
Section 2 (a) only.
3. Sections 2 (b) and the second, third, fourth, fifth, six and eight
checked box items in Section 3 shall be considered unchecked.
4. The first checked box item in Section 3 shall read as follows: "All
Accounts described on Schedule A attached hereto and incorporated herein
by this reference".
5. The third statement of Section 5 shall be checked to indicate that Owner
is a corporation, which maintains its chief executive office in the
state of Indiana.
6. Sections 6 (b), (j) and (r) are herein deleted in their entirety.
7. The reference to Owner's address described above in Section 6 (d) means
the address of Owner's chief executive office in Indiana.
8. It is understood that the Collateral, as provided in Section 6 (d) has
been at the same location for the last four months, except for additions
and sales thereof in the ordinary course of business.
9. Sections 6 (k) and (1) are modified to delete any references to any
assets other than accounts.
10. The representations, warranties and covenants provided in Sections 6
(k), 6 (n) and 6 (p) are given by Owner as to the best of Owner's
knowledge.
11. Section 6 (1), 6 (r) and 6 (s) are herein deleted in their entirety.
12. Section 6 (q) is herein amended and shall read as follows: "Owner shall,
upon a default, which has not been cured, deposit all proceeds of the
Collateral into an account or accounts maintained by owner or Lender at
Lender's institution".
13. In Section 8, after the word Collateral in the third line, the words
"upon default" shall be added.
14. The rights of Lender under Sections 10, 11 and 12 shall only be
available to Lender only if Owner is in default of the Security
Agreement.
15. The balance of Section 11 commencing on the ninth line with the words
"Lender shall be entitled but not..." shall be deleted.
16. The balance of Section 13 commencing on the fourth line with the words
"Owner shall not make any alterations..." shall be deleted.
17. In the event of any Loss or Damage, Owner will either restore the
Collateral to its previous condition or replace the Collateral with
similar property acceptable to Lender.
18. Section 15 is modified in its entirety to provide that the Collateral
will be insured in amounts and to the extent as is generally done in the
industry in which the Owner conducts its business.
19. It is understood that under Section 16, Owner shall have the right to
defend any Claims whether Lender elected or not to defend such Claim.
20. In the event that Lender decides to make an inspection of Owner's books
and records as described in Section 18, it shall give Owner 5-days prior
written notice. Any inspection provided under Section 18 shall be done
during normal business hours.
21. Owner shall not be deemed in default under this Security Agreement for
any monetary payment due until more than 15 days after notice is given
to it and to Borrower of the failure to make such payment, and Owner
shall not be deemed to be in default for any non-monetary obligation
until more than 30 days after notice is given to Borrower and Owner of
Borrower's or Owner's failure to perform such obligation, provided that
with respect to any non-monetary obligation which cannot reasonably be
performed within such 30 day period, Owner shall not be deemed in
default under this Security Agreement if Borrower or Owner shall
commence the curing of such default within such 30 day period and
diligently pursue the curing thereof to completion.
22. The words "dies, becomes legally incompetent" are deleted from Section
19 (g).
23. A sale, conveyance or transfer of the Collateral without Lender's
consent shall not be deemed to be a default if such collateral is sold
in the ordinary course of Owner's business.
24. The first two lines of Section 20 shall read as follows: "RIGHTS OF
LENDER ON DEFAULT. If there is a default under this Agreement and after
expiration of all applicable notice and grace periods, Lender shall be
entitled to exercise one or more of the following remedies"
25. Section 20 (d) shall read as follows: "to collect the outstanding
Obligations and to take possession of any Collateral in any manner
permitted by law". Sections 20 (b) and 20 (e) are herein deleted in
their entirety.
26. Any modification or waiver of any of Owner's Obligations or Lender's
rights under this Agreement must be contained in a writing signed by
Lender and Owner.
27. Schedule A is modified and reads as follows: "ALL ACCOUNTS NOW OWNED OR
HEREAFTER ACQUIRED INCLUDING ALL PROCEEDS THEREFROM ARISING OUT OF THE
BUSINESS OF THE DEBTOR IN ANY GOODS, THE SALE OF WHICH SHALL HAVE GIVEN
OR SHALL GIVE RISE TO ANY OF THE FOREGOING WHICH IS CURRENTLY LOCATED AT
0000 XXXX XXXXXX XXXX, XXXXXXXXXXX, XXXXXXX AND AT ANY FUTURE LOCATION.
ALSO
ALL INVENTORY, RAW MATERIALS, WORK IN PROCESS OR CONSUMED IN DEBTOR'S
BUSINESS, WHETHER NOW OWNED OR HEREAFTER ACQUIRED AND ALL PRODUCTS AND
PROCEEDS THEREOF, WHETHER IN POSSESSION OF THE DEBTOR, A WAREHOUSEMAN, A
BAILEE, OR ANY OTHER PERSON."
IN WITNESS WHEREOF, this document was executed as of the day and year first
above written.
SYNDICATED BLOOMINGTON I LLC
By: Syndicated Food Service Group, Inc.,
Managing Member
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Xxxx Xxxxxxxxx
Secretary
