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Exhibit 10.37
SECURITY AGREEMENT
This Security Agreement made as of the 15th day of December, 1999, by
and between Financial Performance Corporation, a New York corporation having an
address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (hereinafter referred to as
"Debtor") and Xxxxxx X. Xxxxx, an individual having an address c/o Trump
Management, Inc., 0000 Xxxx 0xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter
referred to as "Secured Party").
W I T N E S S E T H:
Whereas, Debtor is currently indebted to Secured Party in the principal
amount of Five Hundred Thousand and 00/100 ($500,000.00) dollars, which
indebtedness is evidenced by a certain secured promissory note (the "Note")
executed and delivered by Debtor to Secured Party, dated even date herewith; and
Whereas, as a material inducement to Secured Party to accept the Note,
and as security for Debtor's full and prompt payment of the Indebtedness (as
hereinafter defined), Debtor has agreed to grant Secured Party a first priority
security interest in the Collateral (as hereinafter defined), on the terms and
conditions hereinafter set forth.
Now, therefore, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. SECURED INDEBTEDNESS. This Security Agreement ("Agreement")
shall secure the full and prompt payment of: (i) the Note and any and all other
indebtedness of Debtor to Secured Party, whether now existing or hereafter
incurred, arising out of any loan, contract, sale, guarantee, agreement or other
transaction of any nature whatsoever, regardless of any other collateral or
security delivered or held in connection with such indebtedness; and (ii) all
costs, fees, charges and expenses which may be due or owing in connection
therewith, including, without limitation, all costs and expenses (including,
without limitation, attorneys' fees, disbursements and court costs) incurred by
Secured Party in connection with the enforcement of any such indebtedness and
Secured Party's enforcement of its rights hereunder (items (i) and (ii) are
hereinafter collectively referred to as the "Indebtedness").
2. SECURITY INTEREST. As security for the full and prompt
payment, performance and observance of the Indebtedness, Debtor hereby assigns,
transfers, sets over and delivers to Secured Party a first priority security
interest in all of Debtor's right, title and interest in and to a sixty-day
certificate of deposit to be purchased with the proceeds of the Note and to be
issued by European American Bank (the "Issuer"), in the principal amount of five
hundred thousand and 00/100 ($500,000.00) dollars and
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having a maturity date of on or about February 15, 2000 (the "Certificate of
Deposit") and all replacements, substitutions, amendments, extensions and
proceeds of the Certificate of Deposit (hereinafter collectively referred to as
the "Collateral").
3. RIGHTS OF OWNERSHIP. If any default under this Agreement or
under the Indebtedness shall occur, whether or not Secured Party exercises any
available option to declare the Indebtedness immediately due and payable or
seeks or pursues any other relief or remedy available to Secured Party, in
addition to all other remedies at law, in equity and hereunder, Secured Party or
its nominee(s) shall have the sole and exclusive right, without notice to
Debtor, to exercise all powers of ownership pertaining to the Collateral, and
shall exercise such powers in such manner as Secured Party deems necessary or
appropriate, in the sole and absolute discretion of Secured Party.
4. FINANCING STATEMENTS; REPORTING. Simultaneously with the
execution of this Agreement, Debtor shall deliver to Secured Party financing
statements in accordance with the Uniform Commercial Code in effect in the State
of New York ("UCC") and any and all certificates, papers, instruments and
documents necessary or appropriate to create, evidence, preserve, perfect,
validate, maintain and/or enforce Secured Party's security interest in the
Collateral. Thereafter, at the request of Secured Party, Debtor shall, at its
sole cost and expense and within forty-eight (48) hours following such request,
execute and deliver to Secured Party one or more specific assignments, financing
statements, continuation statements and any other instruments required by
Secured Party, in form and substance satisfactory to Secured Party, in order to
create, evidence, preserve, perfect, validate, maintain and/or enforce Secured
Party's security interest in the Collateral in all necessary jurisdictions in
the United States, at the sole and absolute discretion of Secured Party. Debtor
designates Secured Party as Debtor's agent and attorney-in-fact to exercise the
right to execute, deliver, file and/or record one or more financing or
continuation statements under the UCC or other documents, as aforesaid, naming
Debtor as the debtor and Secured Party as the secured party, and identifying or
describing the Collateral. Such power of attorney, being coupled with an
interest, shall be irrevocable until all of the Indebtedness has been paid in
full. Debtor hereby authorizes Secured Party to file UCC-1 financing statements,
continuation statements and any amendments thereto without the signature of
Debtor. Debtor shall pay on demand to Secured Party, (i) Secured Party's costs
of creating and perfecting its security interest in the Collateral in all
jurisdictions and (ii) costs of such searches of the public records as Secured
Party in its sole and absolute discretion shall require.
5. LOCATION OF COLLATERAL. The Certificate of Deposit, if issued
in a certificate form, is hereby delivered to, and shall be held by, Secured
Party, until all of the Indebtedness shall be paid in full.
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6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR. As a
material inducement to Secured Party to enter into this Agreement, Debtor
warrants and represents and, where applicable, covenants, to and with Secured
Party, as follows:
(a) Debtor is the sole beneficial and record owner of the
Collateral and has, and at all times during the term of this Agreement
shall have, good and indefeasible title to the Collateral, free and
clear of collateral assignments, any and all liens, options, leases,
beneficial interests, pledges, charges, security interests and other
encumbrances of whatever kind or character, other than the security
interest hereunder;
(b) Debtor has the full power, right and authority to
grant a security interest in the Collateral to Secured Party as herein
provided. Debtor has granted to Secured Party a valid, first priority
security interest in the Collateral. No financing statement or other
instrument with respect to any of the Collateral has been or will be
granted, executed, delivered, recorded, registered or filed, other than
with respect to the lien and security interest of Secured Party granted
hereunder;
(c) Debtor is a corporation duly organized and validly
existing under the laws of the State of New York, has all requisite
corporate power and authority to own, operate and carry on its business
and to enter into this Agreement and to perform all of its obligations
hereunder. Debtor has and shall maintain all licenses and permits
required by all applicable governmental authorities to own and operate
its properties and to carry on its business;
(d) Debtor has obtained all necessary authorizations and
approvals from its Board of Directors required for the execution and
delivery of this Agreement and all collateral documents arising out of
or relating to this transaction, and the consummation of the
transactions contemplated hereby. This Agreement has been duly executed
and delivered by Debtor and constitutes the legal, valid and binding
obligation of Debtor enforceable against Debtor in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy and insolvency laws;
(e) The execution, delivery and performance of this
Agreement by Debtor will not constitute a violation of, or be in
conflict with, or constitute or create a default under: (i) the
certificate of incorporation or by-laws of Debtor, as amended to date;
and (ii) any agreement, instrument, contract or commitment to which
Debtor is a party or by which Debtor or any of Debtor's assets is
bound. Debtor is not subject to any charter, corporate or other legal
restriction or any decree, order, rule or regulation which has or will
have an adverse effect on the business,
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assets or financial condition of Debtor, nor is Debtor a party to any
contract, lease, agreement or instrument which has or may adversely
affect Debtor's ability to perform its obligations to Secured Party;
(f) No consent, approval or authorization of, or
registration, qualification or filing with, any governmental agency or
authority or any other third party is required for the execution,
delivery and performance of this Agreement by Debtor, except as may be
required pursuant to applicable federal and state securities laws;
(g) No claims, actions, suits, proceedings or
investigations are known to be pending or threatened relating to or
affecting the Collateral. Debtor does not know of or have any reason to
believe that there is any event or condition of any kind or character
pertaining to the Collateral which may adversely affect same;
(h) No representation or warranty of Debtor contained
herein, and no certificates or documents called for hereunder, contains
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained herein, or therein, not
misleading.
The foregoing representations and warranties of Debtor are true and
accurate as of the date hereof and shall remain true and accurate so long as the
Indebtedness shall remain outstanding.
7. AFFIRMATIVE COVENANTS OF DEBTOR. Without limiting any of
Debtor's covenants or obligations set forth elsewhere in this Agreement, Debtor
hereby covenants and agrees that so long as the Indebtedness shall remain
outstanding, Debtor shall:
(a) Provide and deliver to Secured Party upon demand
copies of all further documents, assurances, instruments, financial
data, invoices and other information and take all such further action
which Secured Party may reasonably request from time to time in order
to effectuate the purposes of this Agreement; and
(b) Promptly notify Secured Party of (i) any events or
changes in the business, properties or condition, financial or
otherwise, of Debtor, that may result in a material adverse change in
the financial condition of Debtor and/or any adverse change in the
Collateral, (ii) the institution of any suit or administrative
proceeding involving Debtor that may materially and adversely affect
Debtor's operations, property or business, or which may adversely
affect the Collateral, and (iii) the entry of any judgments against the
Debtor or liens against Debtor's property, including the Collateral.
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8. NEGATIVE COVENANTS OF DEBTOR. Without limiting any of Debtor's
covenants or obligations contained elsewhere in this Agreement, Debtor covenants
and agrees that so long as the Indebtedness shall remain outstanding, Debtor
shall not:
(a) take any affirmative action from and after the date
hereof to incur, create or assume any lien, claim, security interest,
charge or other encumbrance of any nature whatsoever, with respect to
the Collateral, nor shall Debtor assign its rights hereunder; or
(b) sell, assign, redeem, liquidate, pledge, hypothecate,
encumber, modify, extend, change, transfer or otherwise dispose of the
Collateral or any part thereof, in whole or in part, without Secured
Party's prior written consent.
9. SPECIAL PROVISIONS CONCERNING CERTIFICATE OF DEPOSIT. Without
limiting any of Debtor's covenants or obligations set forth elsewhere in this
Agreement, Debtor hereby covenants and agrees as follows:
(a) Debtor shall cause the Issuer to comply with any
written instructions the Issuer receives from Secured Party at any time
with regard to the Certificate of Deposit, including, without
limitation, any instructions to redeem, liquidate, transfer, extend or
otherwise dispose of the Certificate of Deposit, in whole or in part.
Simultaneously with Debtor's execution and delivery of this Agreement,
Debtor shall further irrevocably instruct the Issuer, in writing, to
not comply with any instructions the Issuer receives from Debtor unless
such instructions are in writing, signed by both Debtor and Secured
Party;
(b) Debtor shall cause the Issuer to subordinate, in
favor of Secured Party, any security interest, lien or right of set-off
it may have, now or in the future, against the Collateral or any
portion thereof;
(c) Upon maturity of the Certificate of Deposit, the
entire proceeds thereof, including all accrued interest thereon, shall
be paid by Issuer to Secured Party and, upon receipt and collection
thereof by Secured Party, such proceeds shall be applied in reduction
of the Indebtedness, with any excess to be refunded to Debtor;
(d) Simultaneously with Debtor's execution and delivery
of this Agreement, Debtor shall cause the Issuer to enter into such
further written agreement(s) with Debtor and Secured Party which shall
be acceptable in all respects to Secured Party, in order to effectuate
the provisions of Sections 9(a), (b) and (c) above.
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10. INTENTIONALLY DELETED.
11. PAYMENT OF TAXES. If any excise, sales or other tax is imposed
by state, federal or local authorities in respect of the granting of a security
interest in the Collateral under this Agreement, Debtor shall indemnify Secured
Party in respect of such taxes.
12. EVENTS OF DEFAULT. Any one or more of the following events
shall constitute an Event of Default ("Event of Default") under this Agreement:
(a) Debtor's failure to pay the full principal amount of
and accrued interest on the Note on the Maturity Date, or Debtor's
failure to pay any other obligation due to Secured Party from Debtor on
the date upon which such payment is due after giving effect to any
applicable grace period;
(b) If any representation or warranty made by Debtor in
this Agreement or in any document, instrument or agreement ancillary
hereto was false, misleading or inaccurate at the time such
representation or warranty was given and/or becomes false, misleading
or inaccurate during the period such representation or warranty is to
apply;
(c) The making of any levy on, seizure or attachment of
any of the Collateral or any other assets of Debtor;
(d) If Debtor makes an assignment for the benefit of
creditors, files for bankruptcy under the Federal Bankruptcy Act or any
other insolvency laws, or any involuntary petition for bankruptcy is
filed against Debtor or if a trustee or receiver of Debtor or either of
their property shall be appointed;
(e) Any violation of, or failure by Debtor to comply with or
perform, any of the covenants, terms, agreements and conditions of, or
any breach or default under this Agreement or under any other
agreement, document or instrument between Debtor and Secured Party,
whether now or hereafter in effect; or
(f) Upon the institution of proceedings for the dissolution or
full or partial liquidation of Debtor.
13. REMEDIES OF SECURED PARTY. Except with respect to an Event of
Default pursuant to Sections 12 (b), (c), (d) and (f) above, Debtor shall have
ten (10) days from the occurrence of an Event of Default to cure same. Upon the
occurrence of any Event of Default which has not been cured as provided in the
immediately preceding sentence, in addition to all remedies available at law, in
equity and hereunder, Secured Party shall have the right, without further notice
to Debtor, to exercise, with respect to the Collateral, all rights and remedies
of a secured party under the UCC as in effect in the jurisdiction or
jurisdictions where the Collateral is located, and in addition thereto,
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the Note and all other obligations of Debtor to Secured Party shall become
immediately due and payable upon demand and shall forthwith be paid and
discharged by Debtor. Upon failure of Debtor to pay or perform any of Debtor's
obligations under or pursuant to the Note or this Agreement, Secured Party shall
have the following additional rights and remedies: (a) to prosecute any action,
suit or proceeding with respect to the Collateral; and (b) to sell all or any
part of the Collateral in the name of Debtor, or in Secured Party's own name, at
public or private sale, for cash, upon credit or otherwise, and Secured Party
may bid or become a purchaser at any such sale. Each purchaser at any such sale
shall hold the Collateral sold free from any claim or right on the part of
Debtor and Debtor hereby waives (to the extent permitted by law) all rights of
redemption, stay and/or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted.
The giving of ten (10) days' notice by Secured Party designating the time and
place of any public sale or the time after which any private sale is to be made
shall be deemed reasonable notification within the meaning of Section 9-504(3)
of the UCC, and otherwise. Secured Party shall not be obligated to make any sale
of the Collateral if Secured Party shall determine not to do so, regardless of
the fact that notice of sale of the Collateral may have been given. Secured
Party may, without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the time and
place fixed for sale, and such sale may, without further notice, be made at the
time and place to which the same was so adjourned. Secured Party shall not incur
any liability in case any such purchaser or purchasers shall fail to take up and
pay for the Collateral so sold and, in case of any such failure, such Collateral
may be sold again upon like notice. As an alternative to exercising the power of
sale herein conferred upon it, Secured Party may at its option proceed by suit
or suits at law or in equity to foreclose this Agreement and sell the Collateral
or any portion thereof pursuant to judgment or decree of a court or courts
having competent jurisdiction.
14. APPLICATION OF PROCEEDS OF SALE. The proceeds of sale of the
Collateral sold pursuant to the provisions hereof shall be applied by Secured
Party as follows:
First: to the payment of all the costs and expenses of such
sale, including all expenses of Secured Party and the fees and out-of-pocket
expenses of counsel employed in connection therewith, and payment of all costs
and expenses incurred by Secured Party in connection with the administration and
enforcement of this Agreement and/or Secured Party's administration and
ownership of the Collateral.
Second: to the payment or prepayment in full of the
Indebtedness, in any order of priority in the manner that the Secured Party
shall choose.
Third: the balance, if any, shall be paid to Debtor. If the
proceeds of sale are insufficient to satisfy the payments called for in
paragraphs First and Second above, in full, Debtor shall remain liable to
Secured Party for any deficiency.
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15. REMEDIES CUMULATIVE; WAIVER AND RELEASE. All rights, remedies
and powers granted to Secured Party herein or implied in law, shall be
cumulative and may be exercised singly or concurrently with such other rights as
Secured Party may now or hereafter have and shall include, among others, the
right to apply to a court of equity for an injunction to restrain a breach or
threatened breach by Debtor of this Agreement, and such rights may be exercised
as to all or any part of the Collateral. No exercise by Secured Party of one
right or remedy shall be deemed an election which bars Secured Party from
electing any other remedy available to Secured Party and no waiver by Secured
Party of any default on the part of Debtor, or either of them, shall be deemed a
continuing waiver. No delay or failure by Secured Party to exercise its rights
granted hereunder shall be deemed a waiver of such rights or of any other right
granted hereunder or by law. Secured Party may proceed directly against Debtor
to enforce the obligations and shall not be required to take any action to
collect or protect Secured Party's interest in the Collateral. Debtor hereby
waives presentment, notice of dishonor, protest and notice of protest of all
instruments included in, or evidencing, the obligations under this Agreement and
any and all notice or demands whatsoever, except as expressly provided herein.
16. EXPENSES. Debtor shall pay, on demand, all expenses incurred
by Secured Party in connection with the (i) preparation and negotiation of this
Agreement, the Note and all related documentation and the closing of the secured
loan transaction referred to herein and in the Note and (ii) the enforcement and
collection of the Indebtedness and the enforcement of this Agreement including,
but not limited to, attorneys' fees, court costs and disbursements, together
with interest thereon at the rate of fifteen (15%) percent per annum from the
day Secured Party shall have incurred same. Until paid, such amounts shall be
deemed part of the Indebtedness.
17. INDEMNIFICATION. Debtor shall indemnify and hold harmless
Secured Party from and against any and all claims, demands, suits, judgments,
actions, penalties, liabilities, costs and expenses (including, without
limitation, attorneys' fees, disbursements and Court costs) which Secured Party
may incur or suffer or which may be asserted against Secured Party arising out
of or in connection with a breach of any of the covenants, warranties or
representations of Debtor herein.
18. JURISDICTION; WAIVER OF JURY. Any dispute arising out of this
Agreement or the interpretation of this Agreement shall be resolved in
accordance with the terms of this section. Debtor hereby irrevocably consents to
the jurisdiction of the Courts of the State of New York and of any Federal Court
located in such State in connection with any action or proceeding arising out of
or relating to this Agreement and/or the Collateral. In the event of any
litigation with respect to any matter in connection with this Agreement and/or
the Collateral, Debtor hereby waives all rights to a trial by jury, and all
rights of set-off, cross-claim and counterclaim of any nature. In any such
litigation, Debtor waives personal service of any summons, complaint or other
process, the service of which may be made by certified or registered mail
directed to Debtor at the address above set forth. In the alternative, in its
sole discretion, Secured Party may effect service upon Debtor in any other form
or manner permitted by law.
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19. AMENDMENT; SEVERABILITY. This Agreement contains the entire
understanding of the parties with regard to the subject matter hereof and all
prior agreements or understandings of the parties are merged herein. No
provision of this Agreement shall be modified, altered, limited, waived,
released or terminated except by written instrument executed by the party to be
charged. If any term or provision of this Agreement shall be held to be
incomplete, invalid, illegal or unenforceable by a court of competent
jurisdiction, the validity of all other terms hereof shall in no way be affected
thereby.
20. NOTICES. Except as otherwise expressly provided herein, all
notices, requests, demands, documents and other communications given or due
hereunder shall hereafter be made in writing and shall be deemed to have been
duly given: (i) when delivered, if delivered by hand, (ii) one (1) business day
after being delivered to a recognized overnight delivery service such as Federal
Express, or (iii) three (3) days after being deposited in the United States
mail, if mailed, by registered or certified mail, return receipt requested,
postage prepaid, to each party's respective address set forth on the first page
of this Agreement, with a copy given in like manner, in the case of Debtor, to
Xxxx Marks & Xxxxx, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxxx Xxxxx, Esq.; and in the case of Secured Party, to Xxxxxxx Xxxxxxxx
Xxxxxxxxx & Grun, LLP, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx X. Xxxxxxxx, Esq.
21. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the successors and assigns of Debtor and shall, together with the rights and
remedies of Secured Party hereunder, inure to the benefit of Secured Party, its
successors and assigns.
22. INTERPRETATION. Notwithstanding any rule of law or custom to
the contrary, no provision of this Agreement shall be construed or interpreted
in favor of or against one party hereto merely by reason of such party having
caused this Agreement to be prepared.
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23. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
without giving effect to the principles thereof relating to conflicts of laws.
In witness whereof, the parties hereto have caused this agreement to be
executed as of the date first written above.
Debtor:
WITNESS: Financial Performance Corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx,
President
Secured Party:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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