EXHIBIT 4.41
The indebtedness evidence by this Loan and Security Agreement and the lien or
security interest in connection therewith are subordinate to certain other
indebtedness and security interests in accordance with that certain Debt
Subordination and Intercreditor Agreement dated as of August , 2004 among
Addison York Insurance Brokers Ltd., Xxxxxxx Xxxxx International Insurance
Brokers Ltd., Xxxxxx Xxxxxxxxx, Xx Xxxxxxxxxxx Ltd., FCC, LLC, Oak Street
Funding LLC and the Xxxxxxx Family Trust of July 1998, as amended from time to
time (the "Intercreditor Agreement"). In the event of a conflict between the
terms of this Agreement and the Debt Subordination and Intercreditor Agreement,
then the terms of the Debt Subordination and Intercreditor Agreement shall
prevail.
LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement (the "Agreement") is entered into as of August
31, 2004 by and between Addison York Insurance Brokers, Ltd. A Delaware
corporation with offices located at 0000 Xxxxxxxxx Xxxx X.X., Xxxxx 000,
Xxxxxxx, Xxxxxxx X0X 0X0 (the "Company"), and Xxxxxx Xxxxxxxxx with offices
located at 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Creditor").
WHEREAS, the Company and the Creditor have executed a Commitment Letter dated
July 19, 2004 pursuant to which the Creditor has agreed to provide a loan in the
principal amount of $3,2550,000 (the "Loan") to the Company and the Company has
agreed to borrow funds from the Creditor;
AND WHEREAS, the Company plans to use the Loan to purchase the assets of Xx
Xxxxxxxxxxx, Ltd. pursuant to an Asset Purchase Agreement dated effective the
31st day of August, 2004 and made between the Company, Xx Xxxxxxxxxxx Ltd., Xxxx
Xxxxxxxxxxx and Xxxxx Xxxxxxx (the "APA")
AND WHEREAS, pursuant to the Loan the Company has executed and delivered a
promissory note (the "Note") drawn in favor of the Creditor in the principal
amount of the Loan and dated August , 2004.
NOW, THEREFORE, in consideration of the promises contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement the terms "Accounts", "Agency
Agreement", "Commission", "Equipment", "Expirations", General Intangibles",
"Goods", "Insurance Company", "Insurance Policy", "Lien", "Oak Street" and
"Person" shall have the meanings ascribed to them in the Loan and Security
Agreement between Borrower and FCC, LLC ("FCC") dated as of May , 2004.The term
"State", as used herein, means the State of New Jersey. All terms defined in the
Uniform Commercial Code of the State and used herein shall have the same
definitions herein as specified therein. However, if a term is defined in
Article 9 of the Uniform Commercial Code of the State differently than in
another Article of the Uniform Commercial Code of the State, the term has the
meaning specified in Article 9. The term "Obligations' as used herein, means all
of the indebtedness, obligations and liabilities of the Company to Creditor,
individually or collectively, whether direct or indirect, joint or several,
absolute or contingent, due or to become due, now existing or hereafter arising
under or in respect of the Loan or the Note, or any other instruments
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executed in connection with this Agreement. The term "Loan Maturity Date" means
August , 2008. The term "Indebtedness" means, as to any person, at any date: (i)
all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices); (ii) any other indebtedness which is evidenced by a note, bond,
debenture or similar instrument; (iii) all capital lease obligations of such
Person; (iv) all obligations (contingent or otherwise) of such Person in respect
of outstanding letters of credit, acceptances and similar obligations created
for the account or upon the application of such Person; and (v) all liabilities
secured by any Lien on any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof. The term
"Guarantor" means Xxxxxxx Xxxxx International Insurance Brokers, Ltd., a
corporation incorporated under the laws of the Province of Alberta. The term
"Canadian Security Agreement" means the General Security Agreement dated as of
August , 2004 between the Guarantor and the Lender. The term "Date of Closing"
means the date on which all of the conditions set forth in Section 10 are met.
The term "Loan Documents" means this Agreement, the Note, the Canadian Security
Agreement and the Guaranty.
2. The Loan. (a) Subject to the terms and conditions of this Agreement, the
Creditor agrees to make the Loan to the Company on the Date of Closing. The
Company shall use the proceeds of the Loan to acquire substantially all of the
assets of Xx Xxxxxxxxxxx Ltd. The full amount of the Loan shall be disbursed by
depositing the amount thereof into an account of the Company at __________.
(b) The Loan shall be evidenced by the Note in the form attached hereto as
Exhibit A. The Note shall: (i) be payable to the order of the Creditor by the
Company in the principal amount of the Loan; (ii) be stated to mature on the
Loan Maturity Date; (iii) bear interest on the entire unpaid principal amount
thereof at fixed annual rate of fourteen (14%) percent; and (iv) be payable as
to principal and interest in the manner and at the times specified in this
Agreement and the Note. All computations of interest and fees hereunder and
under the Note shall be based upon the actual number of days elapsed over a year
of 360 days. All computations of interest shall include the first day, but not
the last day occurring in the period for which interest is payable.
(c) The Company shall pay a late charge of four percent (4%) of any payment
of principal or interest required to be made under the Note and not received by
Creditor within five days of its due date. Upon the occurrence and during the
continuance of any Event of Default, the Company shall pay interest on all
amounts outstanding under the Note at the Default Rate. The Default Rate shall
equal nineteen (19 %) percent and shall be applied retroactive to the date of
the first occurrence of the default and shall survive the entry of any judgment
relating to the Loan. If the rate of interest payable in accordance with the
Note would at any time exceed the maximum amount permitted by any law applicable
at that time to commercial loans of the kind evidenced by the Note, then for
such period as such rate would exceed the maximum permitted by such law (and no
longer) the rate of interest payable under Note shall be reduced to the maximum
amount permitted by such law.
(d) All payments made by the Borrower under this Agreement and the Note
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any governmental authority. Payments
of (i) principal and interest to be made by the Company with respect to the Note
and (ii) all other Obligations of the Company to the Creditor under any other
Loan Document shall be made to the Creditor by wire transfer of immediately
available funds in coin or currency of the United States of
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America to the following account:
(e) Notwithstanding anything to the contrary contained herein or in the
Note, on the six-month anniversary of the Date of Closing, the Borrower shall
repay principal in the amount of Two Hundred Fifty Thousand ($250,000) Dollars
in the event Oak Street and FCC agree in their sole discretion to an increase in
their advance rate with respect to the assets acquired pursuant to the APA at
that period of time. In addition to the foregoing the Company shall use its best
efforts to reduce the outstanding principal by payment of One Million
($1,000,000) to Creditor within one year of the Date of Closing.
3. Grant of Security Interest. The Company hereby grants to Creditor, to secure
the payment and performance in full of all of the Obligations, a security
interest in and so pledges and assigns to the Creditor the following properties,
assets and rights of the Company, wherever located, whether now owned or
hereafter acquired or arising, and all proceeds and products thereof (all of the
same being hereinafter called the "Collateral"): all personal and fixture
property of every kind and nature including without limitation all Goods
(including inventory, Equipment and any accessions thereto), instruments
(including promissory notes), documents, accounts (including
health-care-insurance receivables), chattel paper (whether tangible or
electronic), deposit accounts, letter-of-credit rights (whether or not the
letter of credit is evidenced by a writing), commercial tort claims, securities
and all other investment property, supporting obligations, any other contract
rights or rights to the payment of money, insurance claims and proceeds, tort
claims, and all General Intangibles including, without limitation, all payment
intangibles, patents, patent applications, trademarks, trademark applications,
trade names, copyrights, copyright applications, software, engineering drawings,
service marks, customer lists, goodwill, and all licenses, permits, agreements
of any kind or nature pursuant to which the Company possesses, uses or has
authority to possess or use property (whether tangible or intangible) of others
or others possess, use or have authority to possess or use property (whether
tangible or intangible) of the Company, and all recorded data of any kind or
nature, regardless of the medium of recording including, without limitation, all
software, writings, plans, specifications and schematics.
4. Authorization to File Financing Statements. The Company hereby irrevocably
authorizes Creditor at any time and from time to time to file in any Uniform
Commercial Code jurisdiction any initial financing statements and amendments
thereto (the "Financing Statements") that (a) identify the Collateral, and (b)
contain any other information required by part 5 of Article 9 of the Uniform
Commercial Code of the State for the sufficiency or filing office acceptance of
any financing statement or amendment. A copy of the initial Financing Statement
proposed to be filed by Creditor is attached as Exhibit "A" hereto.
5. Other Actions. The Company further agrees to take any and all action
reasonably requested by Creditor to insure the attachment and perfection of, and
the ability of Creditor to enforce, Creditor's security interest in the
Collateral including, without limitation, (a) executing, delivering and, where
appropriate, filing financing statements and amendments relating thereto under
the Uniform Commercial Code, to the extent, if any, that the Company's signature
thereon is required therefor, (b) causing the Creditor's name to be noted as a
secured party on any certificate of title if such notation is a condition to
attachment, perfection or priority of, or ability of Creditor to enforce,
Creditor's security interest in the Collateral, (c) complying with any provision
of any statute, regulation or treaty of the United States as to the Collateral
if compliance with such provision is a condition to attachment, perfection or
priority of, or ability of Creditor to enforce, the Creditor's security interest
in the Collateral, (d) obtaining governmental and other third party consents and
approvals, (e) taking all actions required by any earlier versions of the
Uniform Commercial Code
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or by other law, as applicable in any relevant Uniform Commercial Code
jurisdiction, or by other law as applicable in any foreign jurisdiction.
6. Representations and Warranties Concerning Legal Status. The Company
represents and warrants to Creditor that:
(a) The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is qualified to do business
as a foreign corporation in all jurisdictions where the nature of its business
and/or ownership of its assets makes such qualification necessary.
(b) The Company has the requisite power and authority to own its properties and
assets. All of the Company's properties and assets are located its offices set
forth on Exhibit "B"hereto.
(c) The Company has the power to execute deliver and perform this Agreement and
the other agreements and documents referred to herein to which it is a party and
to grant the security interests granted under or pursuant to the terms of this
Agreement, all of which actions have been duly authorized by all necessary
corporate action.
(d) The Company's execution of and performance of all transactions contemplated
by this Agreement do not and will not in any way materially and adversely affect
the rights of the Company, violate or constitute a breach of any provision of
law, any court or agency decree or judgment, rule or regulation applicable to
the Company or the Company's certificate of incorporation or bylaws or be in
conflict with or constitute a breach of any other agreement, contract or
instrument or other binding commitment to which the Company is a party or by
which it is bound.
(e) This Agreement and each of the other documents executed by the Company and
delivered to Creditor hereunder, when executed and delivered will constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms.
(f) The Company is not in default in the performance of any material obligation,
undertaking or covenant contained in any contract or agreement to which it is a
party or by which it, or any portion of the Collateral, is bound.
(g) There is currently no material action, suit or proceeding at law or in
equity or by or before any governmental instrumentality or other agency or any
investigation into the affairs of the Company or any of its properties or
rights.
7. Covenants Concerning Company's Legal Status. The Company covenants with
Creditor that without providing at least 30 days prior written notice to
Creditor, the Company will not change its name, its place of business or, if
more than one, chief executive office, or its mailing address or organizational
identification number, and the Company will not change its type of organization,
jurisdiction of organization or other legal structure.
8. Representations and Warranties Concerning Collateral. The Company further
represents and warrants to Creditor as follows:
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(a) The Company is the owner of or has other rights in or power to transfer the
Collateral, free from any adverse lien, security interest or other encumbrance,
except for the security interest created by this Agreement and the permitted
encumbrances set forth on Exhibit "C" hereto (the "Permitted Encumbrances");
(b) None of the account debtors or other persons obligated on any of the
Collateral is a governmental authority subject to the Federal Assignment of
Claims Act or like federal, state or local statute or rule in respect of such
Collateral;
(c) The Company holds no commercial tort claim; and,
(d) The Company has at all times operated its business in compliance with all
applicable provisions of the federal Fair Labor Standards Act, as amended, and
with all applicable provisions of federal, state and local statutes and
ordinances dealing with the control, shipment, storage or disposal of hazardous
materials or substances.
9. Covenants Concerning Collateral. Etc. The Company further covenants with
Creditor as follows:
(a) The Collateral will be kept at the locations set forth in Exhibit "B" and
the Company will not remove the Collateral from such location, without providing
at least 30 days prior written notice to Creditor;
(b) Except for the security interest herein granted and the Permitted
Encumbrances, the Company shall be the owner of the Collateral free from any
lien, security interest or other encumbrance, and the Company shall defend the
same against all claims and demands of all persons at any time claiming the same
or any interests therein adverse to Creditor;
(c) The Company will keep the Collateral in good order and repair and will not
use the same in violation of law or any policy of insurance thereon;
(d) The Company will pay promptly when due all taxes, assessments, governmental
charges and levies upon the Collateral or incurred in connection with the use or
operation of such Collateral or incurred in connection with this Agreement.
(e) The Company shall at its own expense, to the extent same is insurable, at
all times keep all of the Collateral insured in favor of the Creditor in
accordance with Section.9 (f). If the Company shall fail to insure its
Collateral to the Creditor's satisfaction or to endorse and deposit all policies
or certificates with respect thereto as required by Section 9(f), the Creditor
shall have the right (but shall be under no obligation) to procure such
insurance and the Company agrees to immediately reimburse the Creditor for all
costs and expenses of procuring such insurance; and such costs and expenses
shall: (i) be added to, and become part of, the Obligations, (ii) bear interest
at the Default Rate from the date of such payment by the Creditor until
reimbursement by the Company, and (iii) be secured under the Loan Documents, and
the Company shall immediately reimburse the Creditor for such amount, together
with interest thereon at the Default Rate. Insurable losses shall be adjusted as
provided in Section 9(f). The Company shall retain all liability and
responsibility in connection with the Collateral; and liability under the Loan
Documents shall in no way be affected or diminished by reason of the fact
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that any such Collateral may be lost, destroyed, stolen, damaged or for any
reason whatsoever be unavailable to it.
(f) (i) The Company shall at its own cost and expense, insure its property and
operations conducted thereon on a full replacement cost basis in such manner and
against such loss, damage and liability, including liability to third parties,
as is customary with property owners in the same or similar businesses in the
State of New Jersey or such other states where the same are located.
(ii) Any insurance required hereunder shall be written by insurance
companies authorized or licensed to do business in the State of New Jersey or
the states where the property insured is located, shall be of such types as
shall be reasonably required by the Creditor and shall be on such forms, in such
amounts and written by such companies as shall be approved by the Creditor. The
Creditor shall be named pursuant to a standard non-contribution clause
endorsement or an equivalent endorsement satisfactory to the Creditor, as the
person to whom all payments made by the insurer, as to property and casualty
insurance and additional insured as to liability insurance, as his interests may
appear. Such insurance coverage may be effected under overall blanket or excess
coverage policies of the Company. Each insurance policy maintained pursuant to
this Agreement shall contain a provision to the effect that such policy shall
not be canceled or decreased unless the Creditor shall be notified at least
thirty (30) days prior to such cancellation or alteration. At least thirty (30)
days prior to the expiration date of any such policy, the Company shall provide
to the Creditor notice of the status of such policy, and not later than ten (10)
days prior to the expiration of any such policy, the Company shall provide to
the Creditor a renewal policy or certificate marked "premium paid" or
accompanied by other evidence of payment of premium satisfactory to the
Creditor.
(iii) The Creditor shall have the right to adjust any claim in excess of
$50,000 in the aggregate under such insurance and may apply any proceeds
thereof, when received by it, toward the payment of the Loan or other
obligations secured under the Loan Documents, whether or not the same shall then
be due.
(g) The repayment and performance of all of the Obligations of the Company shall
be guarantied by the Guarantor pursuant to the Guaranty which shall be secured
as provided in the Canadian Security Agreement, and the Company will cause the
Guarantor to execute and deliver the Guaranty and the Canadian Security
Agreement to the Creditor on the Date of Closing.
(h) The Company shall promptly notify the Creditor of any default or Event of
Default by the Company under its loan agreements with Oak Street and/or FCC and
shall provide copies to the Creditor of all documents received or sent in
connection with any such default or Event of Default.
10. Conditions to Lending. As conditions precedent to the obligation of the
Creditor to make the Loan, the Creditor shall receive the following on or prior
to the Date of Closing, all in form and substance satisfactory to the Creditor
and its counsel:
(1) This Agreement, duly executed and delivered by all parties hereto;
(2) The Note, duly executed and delivered by the Company;
(3) The Guaranty and the Canadian Security Agreement, duly executed and
delivered by the Guarantor;
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(4) UCC-1 financing statements and equivalent documents for filing or
recording in Canada necessary or desirable, in the opinion of the
Creditor, to perfect or protect the security interests in the
Collateral granted by the Loan Documents;
(5) Current UCC, lien, tax (including franchise tax) and judgment searches
of the Company conducted with the appropriate state and local
jurisdictions, together with copies of the financing statements and
other Liens disclosed by such searches, showing no Liens except for
Permitted Liens (or if unpermitted Liens are disclosed, the Creditor
shall receive satisfactory evidence of the release of such Liens);
(6) Original or duplicate policies of "all-risk, fire and extended
coverage hazard insurance in an amount not less than 100% of the full
insurable replacement value of the Collateral; comprehensive general
public liability insurance in an amount satisfactory to the Creditor
in each case in form and with companies acceptable to the Creditor and
naming the Creditor as loss payee and additional insured (without
contribution), as applicable, on such policies. The Company shall
produce original policies and satisfactory proof of payment of
premiums at closing. Each insurance policy must state that it will not
be cancelled or changed without at least thirty (30) days, prior
written notice to the Creditor
(7) An opinion of the Company's and Guarantor's counsel, in form and
substance satisfactory to the Creditor;
(8) An executed intercreditor agreement by, between and among the
Creditor, Oak Street, FCC and Xx Xxxxxxxxxxx, Ltd. in form and
substance reasonably acceptable to Creditor and its counsel.
(9) True and complete copies of the charters, bylaws and corporate
resolutions of the Company and the Guarantor, and certificates as to
the incumbency and the specimen signatures of each officer executing
any Loan Documents on behalf of the Company and the Guarantor together
with Good standing certificate(s) of the Company and the Guarantor,
and
(10) Such other documents, opinions, certificates and information as the
Creditor may reasonably request.
11. Default. Each of the following constitutes an "Event of Default":
(a) The Company fails to pay all or any part of the accrued interest monthly or
unpaid principal on the Note when and as the same becomes due and payable at
maturity, upon prepayment, by acceleration or otherwise;
(b) The Company fails to observe or perform in all material respects any
covenant or agreement on its part contained in this Agreement, the Loan or the
Note if such failure is not remedied within 10 days after written notice is
given to Company by Creditor specifying such default, requiring that such
default be remedied and stating that such notice is a "Notice of Default."
(c) Any representation or warranty made in this Agreement, the Loan or the Note
proves to have been false or misleading in any material respect;
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(d) Any action is taken establishing or seeking to establish a lien, charge or
other right to any of the assets comprising the Collateral, or seeking to
execute upon, seize or foreclose upon any such assets, and such action is not
fully released, abandoned or dismissed within ten days after such action is
first initiated.
(e) The Company pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an
involuntary case;
(iii)consents to the appointment of a Custodian of it for all or
substantially all of the its property; or
(iv) makes a general assignment for the benefit of its creditors; or
(f) A court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against Company in an involuntary case;
(ii) appoints a Custodian for Company or for all or substantially all of
its property; or
(iii) orders the liquidation of Company;
and the order or decree remains unstayed and in effect for 60 consecutive days.
The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
(g) There shall be entered against the Company one or more judgments or decrees
involving an aggregate of $100,000 (or its equivalent) or more for the Company
and all such judgments and decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within thirty (30) days from the entry thereof.
(h) The Company shall default (beyond any applicable cure periods) (i) in any
payment of principal of or interest on any Indebtedness (other than the Note) or
(ii) in the payment of any guaranty of payment (or performance) by the Company
of any indebtedness or other obligation of any other person, or any agreement to
provide financial assurance with respect to the financial condition, or the
payment of the obligations of, other person (including, without limitation,
purchase or repurchase agreements, reimbursement agreements with respect to
letters of credit or acceptances, indemnity arrangements, grants of security
interests to support the obligations of another person ("Contingent Obligation")
or (iii) in the observance or performance of any other agreement or condition
relating to any Indebtedness or Contingent Obligation contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or a beneficiary or beneficiaries (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) of such Contingent
Obligation to cause, with the giving of notice or lapse of time, or both, if
required, such Indebtedness to become due prior to its stated maturity or such
Contingent Obligation to become payable.
12. Remedies on Default. If any Event of Default occurs, Creditor, (a) by
written notice to Company may declare the principal of and accrued interest on
the Notes to be immediately due and payable; provided that in the case of an
Event of Default described in Section 11.1 (e) or (f), the Note shall become due
and payable without further action or notice;
(b) Take any action at law or in equity to collect the payments then due
and thereafter to
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become due hereunder under the Note or under any other Loan Document or to
enforce performance and observance of any obligation, agreement or covenant of
the Company under any Loan Document;
(c) Exercise any and all rights and remedies available at law or in equity
under each of the Loan Documents or as otherwise provided by law; and/or
(d) Exercise in respect of any Collateral, in addition to any other rights
or remedies it may have under law, in equity or given it elsewhere in the Loan
Documents, all the rights and remedies of a secured party under the UCC (whether
or not the UCC applies to the affected property) and may also (i) require the
Company to assemble, and the Company hereby agrees to assemble, such property as
directed by the Creditor and make it available to the Creditor at a place
specified by the Creditor (and after delivery thereof the Company shall have no
further claim thereto or interest therein) and (ii) with such telephone or other
notice, if any, as is practicable under the circumstances or as is hereafter
specified, sell such Collateral or any part thereof in one or more parcels, at
public or private sale, at the Creditor's office or elsewhere, for cash, on
credit or for future delivery (without assumption of any credit risk), at such
price or prices and on such other terms as shall be commercially reasonable. The
Company hereby agrees that the Creditor may exercise the rights and remedies
provided by this Section and elsewhere in the Loan Documents and that the
exercise of such rights and remedies by the Creditor, including, without
limitation, the sale of Collateral, may be accomplished without demand,
advertisement or notice (except as required by law), all of which (to the extent
permitted by law) are hereby expressly waived. The Company hereby agrees that to
the extent notice is required by law, ten (10) days' notice to it of the time
and place of any public sale or the time after which private sale may be made
shall constitute reasonable notification, except that if the Creditor shall
determine in its sole discretion that any of the Collateral covenants that it
will not hinder, delay or impede the execution of any power granted or delegated
to the Creditor hereby, but will suffer and permit the execution of every such
power as though no such laws were in force.
13. No Duty on Creditor. The powers conferred on Creditor hereunder are solely
to protect its interests in the Collateral and shall not impose any duty upon
Creditor to exercise any such powers. Creditor shall be accountable only for the
amounts that it actually receives as a result of the exercise of such powers and
neither it nor any of its officers, directors, employees or agents shall be
responsible to the Company for any act or failure to act, except for Creditor's
own gross negligence or willful misconduct.
14. No Waiver by Creditors. Creditor shall not be deemed to have waived any of
its rights upon or under the Obligations or the Collateral unless such waiver
shall be in writing and signed by Creditor. No delay or omission on the part of
Creditor in exercising any right shall operate as a waiver of such right or any
other right. A waiver on any one occasion shall not be construed as a bar to or
waiver of any right on any future occasion. All rights and remedies of Creditor
with respect to the Obligations or the Collateral, whether evidenced hereby or
by any other instrument or papers, shall be cumulative and may be exercised
singularly, alternatively, successively or concurrently at such time or at such
times as Creditor deems expedient.
15. Governing Law: Consent to Jurisdiction. This Agreement shall be governed by,
and construed in accordance with, the laws of the state of New Jersey. The
Company agrees that any suit for the enforcement of this Agreement may be
brought in the courts of the State of New Jersey or any federal court sitting
therein and consents to the non-exclusive jurisdiction of such court and to
service of process in any such suit being made upon the Company by mail at its
registered address. The Company hereby waives, to the fullest extent permitted
by law, any objection the
9
Company may have to the venue of any such suit, action or proceeding including
the defense of an inconvenient forum to the maintenance of such suit, action or
proceeding. The Company further agrees that a final judgment in any such suit,
action or proceeding brought in any such court or tribunal will be conclusive
and may be enforced in any other jurisdiction by suit on the judgment or in any
other manner provided by law.
16. Costs and Expenses. (A) The Company agrees to pay or cause to be paid on
demand the reasonable fees and expenses of counsel to the Creditor in connection
with the preparation of this Agreement and all other Loan Documents, and to pay
on demand the reasonable fees and expenses of counsel to the Creditor in
connection with all amendments or revisions after the execution of such Loan
Documents, and the consummation and administration of the transactions
contemplated hereby and thereby.
(B) The Company agrees to pay all reasonable expenses incurred by the
Creditor in connection with the Obligations, including, without limitation, all
stamps, recording fees, filing fees and taxes paid in respect of the execution
and delivery of the Loan Documents and financing statements and all expenses of
the Creditor in connection with the collection of any amounts due hereunder or
under the Note and the other Loan Documents, including reasonable attorneys,
fees.
(C) In the event that the Company shall default under any of the provisions
of this Agreement or any other Loan Document and the Creditor shall require and
employ attorneys or incur other expenses for the collection of payments due or
to become due or the enforcement of performance or observance of any obligation
or agreement on the part of the Company contained herein or therein, the Company
shall on demand therefor pay to the Creditor the reasonable fees and expenses of
such attorneys and such other reasonable expenses so incurred by the Creditor.
17. Indemnity. The Company hereby agrees to, and does hereby, indemnify,
protect, defend and save harmless the Creditor his heirs, executors,
administrators, successors and assigns (collectively, the "Indemnified
Parties"), from and against any and all losses, damages, expenses or liabilities
of any kind or nature and from any suits, claims or demands, including
reasonable attorneys, fees incurred in investigating or defending such claim,
suffered by any of them by, relating to, arising out of, resulting from, or in
any way connected with, the Loan Documents and the transactions contemplated
therein or the collateral (unless caused by or arising from grossly negligent
actions or the willful misconduct of the Creditor). This Section shall survive
termination of this Agreement and the other Loan Documents and the repayment of
the all amounts hereunder and thereunder.
18. Miscellaneous. The headings of each section of this Agreement are for
convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon the
Company and its respective successors and assigns, and shall inure to the
benefit of Creditor and its successors and assigns. If any term of this
Agreement shall be held to be invalid, illegal or unenforceable, the validity of
all other terms hereof shall in no way be affected thereby, and this Agreement
shall be construed and be enforceable as if such invalid, illegal or
unenforceable term had not been included herein. From time to time when
requested by the Creditor, the Company shall at its own expense, execute such
documents and take such other actions as may be reasonably requested by the
Creditor to protect or perfect any of the security interests granted under any
of the Loan Documents. This Agreement may be executed by telecopy and in two or
more counterparts, each of which shall be deemed an original and all of which
shall be considered one and the same instrument.
10
IN WITNESS WHEREOF, the Company and Creditor have duly executed this Security
Agreement as of the date first set forth above.
/s/ Xxxxxx Xxxxxxxxx
-------------------------------- ---------------------------------------
Witness XXXXXX XXXXXXXXX
ADDISON YORK INSURANCE BROKERS, INC.
Per: /s/ P. Podorieszach
-----------------------------
11
EXHIBIT "A"
UCC FINANCING STATEMENT
12
EXHIBIT "B"
LOCATIONS OF COLLATERAL
13
EXHIBIT "C"
PERMITTED ENCUMBRANCES
14
