SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is made and entered into
as of May 7, 1998 between BLC COMMERCIAL CAPITAL CORP., a Florida corporation
with its principal place of business located at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Debtor"), and TRANSAMERICA BUSINESS CREDIT
CORPORATION, a Delaware corporation with its principal place of business located
at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 ("Secured
Party"), with reference to the following facts:
RECITALS
A. Debtor, BLC Financial Services, Inc., a Delaware corporation, and
Secured Party are concurrently entering into a Loan Agreement pursuant to which
Secured Party has agreed to provide a revolving credit facility in the maximum
amount of up to Fifteen Million Dollars ($15,000,000) to Debtor upon the terms
and conditions set forth therein (as the same may from time to time be amended,
modified or supplemented, being hereinafter called the "Loan Agreement").
B. Secured Party has conditioned its obligations under the Loan Agreement
upon the execution and delivery by Debtor of this Agreement and Debtor has
agreed to enter into this Agreement.
C. In order to comply with the terms and conditions of the Loan Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Debtor hereby agrees with Secured Party as
follows:
ARTICLE I
GENERAL TERMS
1.1 Defined Terms. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings assigned to them in the Loan Agreement, and the
following terms shall have the following meanings, unless the context otherwise
requires (such meanings being equally applicable to both the singular and plural
form of the terms defined):
"Accounts" means all accounts, contract rights, chattel paper,
instruments and documents (as such terms are defined
in the UCC), including all Notes Receivable, accounts receivable, other
receivables, and other forms of obligations, whether now owned or
hereafter created or acquired by Debtor or in which Debtor now has or
hereafter acquires any interest.
"Account Debtor" means any Person liable (whether directly or
indirectly, or primarily or secondarily) for the payment or performance of
any obligations or undertakings included in the Collateral, whether as an
account debtor (as defined in the UCC), obligor in respect of instruments
or Investment Property, issuer of documents or securities, guarantor or
otherwise.
"Agreement" means this Security Agreement, as the same may from time
to time be amended, modified or supplemented.
"Collateral" shall have the meaning assigned to such term in
Section 2.1.
"Debtor" shall have the meaning assigned to such term in the
preamble of this Agreement.
"Event of Default" means any event specified in Section 6.1.
"General Intangibles" means all personal property other than goods,
accounts, chattel paper, documents, instruments, Investment Property, and
money. Such personal property shall include all letters of credit, bonds,
guaranties, and other contractual rights (whether similar or dissimilar),
rights to performance, and claims for damages, rights to refunds
(including tax refunds) or other monies due or to become due; all orders,
franchises, permits, certificates, licenses (excluding Debtor's license to
make B&I Loans), consents, exemptions, variances, authorizations or other
approvals by any governmental agency or court; literary rights, patents,
patent applications, copyrights, trademarks, trademark applications,
labels, trade names and trade styles and goodwill; all customer lists,
business records, computer programs and tapes and computer software; all
claims under guaranties, security interests, liens, or other security held
by or granted to Debtor to secure payment of any of the Accounts or loans
made to an Account Debtor; deposit accounts and other bank accounts, and
all rights to indemnification and all other intangible property
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of every kind and nature, whether similar or dissimilar to the foregoing.
"Investment Property" all investment property (as such term is
defined in the UCC), including all securities, whether certificated or
uncertificated, all security entitlements, all security accounts, all
commodity contracts and all commodity accounts.
"Loan Agreement" shall have the meaning assigned to such term in the
Recitals of this Agreement.
"Secured Party" shall have the meaning assigned to such term in the
preamble of this Agreement.
1.2 Certain Matters of Construction. The terms "herein", "hereof" and
"hereunder" and other words of similar import shall refer to this Agreement as a
whole and not to any particular section, paragraph or subdivision. Any reference
to a "Section," "Exhibit," "Article," or "Schedule" shall refer to the relevant
Section or Article of or Exhibit or Schedule to this Agreement, unless
specifically indicated to the contrary. Any pronoun used shall be deemed to
cover all genders. The term "including" shall not be limiting or exclusive,
unless specifically indicated to the contrary. All references to statutes and
related regulations shall include any amendments of same and any successor
statutes and regulations.
ARTICLE II
SECURITY INTEREST
2.1 Grant of Security Interest. To secure the prompt payment and
performance to Secured Party of the Liabilities, Debtor hereby irrevocably
grants to Secured Party a first, prior and continuing security interest in and
Lien upon the following property of Debtor to the extent of Debtor's interest
therein (the "Collateral"), whether now owned or existing or hereafter acquired,
owned, existing or arising (whether acquired by contract or operation of law)
and wherever located, which shall be retained by Secured Party until all of the
Liabilities have been paid in full and this Agreement has been terminated:
(a) All Accounts;
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(b) All inventory, equipment (including any and all computer
hardware and components), machinery and fixtures of Debtor in
all forms and wherever located, and all parts and products
thereof, all accessories thereto, and all documents therefor;
(c) All General Intangibles;
(d) All Investment Property;
(e) All monies, residues and property of any kind, now or at any
time or times hereafter, in the possession or under the
control of Secured Party or a bailee of Secured Party;
(f) All leasehold interests in real property now owned or
hereafter acquired by Debtor as lessee or sublessor;
(g) All books and records (including any and all customer lists,
credit files, computer programs, printouts, and other computer
materials and records) of Debtor pertaining to any of the
foregoing;
(h) All other goods and personal property of Debtor, whether
tangible or intangible and whether now or hereafter owned or
existing, leased, or acquired by Debtor and wherever located;
(i) All accessions to, substitutions for and all replacements,
products and cash and non-cash proceeds of the foregoing,
including proceeds of insurance policies insuring the
Collateral (including claims paid and premium refunds).
2.2 Additional Security. Additional property may from time to time be
pledged, assigned or granted to Secured Party as additional security for the
Liabilities, and the term "Collateral" as used herein shall be deemed for all
purposes hereof to include all such additional property, together with all other
property of the types described above related thereto.
ARTICLE III
DEBTOR'S REPRESENTATIONS AND WARRANTIES
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In order to induce Secured Party to accept this Agreement, Debtor
represents and warrants to Secured Party (which representations and warranties
shall survive the creation and payment of the Liabilities) that, after giving
effect to the transactions, rights, and obligations contemplated and created by
the B&I Lender's Agreement:
3.1 Ownership of Collateral; Encumbrances; Valid and Binding Agreement.
Debtor is the legal and beneficial owner of the Collateral free and clear of any
adverse claim, lien, security interest, option or other charge or encumbrance
except for Permitted Liens and the security interest created by this Agreement,
and Debtor has full right, power and authority to assign and grant a security
interest in the Collateral to Secured Party. This Agreement creates a valid
first-priority security interest in the Collateral, securing the payment of the
Liabilities and constitutes a legal, valid and binding obligation of Debtor
enforceable against Debtor in accordance with its terms. The execution, delivery
and performance of this Agreement shall not violate the terms of any contract,
agreement, law, regulation, order, injunction, judgment, decree or writ to which
Debtor is subject and, except for consents and approvals which have previously
been obtained, does not require the consent or approval of any other Person.
3.2 No Required Consent. No authorization, consent, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body (other than the filing of financing statements) is required for
(i) the due execution, delivery and performance by Debtor of this Agreement,
(ii) the grant by Debtor of the security interest granted by this Agreement, or
(iii) the perfection of such security interest or the exercise by Secured Party
of its rights and remedies under this Agreement.
3.3 No Filings by Third Parties. Except for financing statements filed or
recorded in connection with Permitted Liens, no financing statement or other
public notice or recording covering the Collateral is on file in any public
office (other than any financing statement or other public notice or recording
naming Secured Party as the secured party therein), and Debtor shall not execute
any such financing statement or other public notice or recording in favor of any
Person other than Secured Party so long as any of the Liabilities are
outstanding.
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3.4 No Name Changes. Debtor has not, during the preceding five (5) years,
entered into any contract, agreement, security instrument or other document
using a name other than, or been known by or otherwise used any name other than,
BLC Commercial Capital or the name used by Debtor herein.
3.5 Location of Debtor. Debtor's chief executive office and Debtor's books
and records concerning the Collateral are located at the address or location set
forth in the preamble of this Agreement.
3.6 Information Regarding Collateral. All information supplied by Debtor
to Secured Party in connection with the Liabilities or the Collateral (either
prior or subsequent to the execution of this Agreement) is or (in the case of
subsequently furnished information) shall be true, correct, complete, valid and
genuine to the best knowledge of Debtor after due inquiry. The delivery at any
time by Debtor to Secured Party of Collateral or of additional specific
descriptions of certain Collateral shall constitute a representation and
warranty by Debtor to Secured Party hereunder that the representations and
warranties of this Section 3.6 are true and correct, to the best knowledge of
Debtor after due inquiry, with respect to each item of Collateral.
3.7 Status of Accounts. All instruments comprising Accounts shall be
properly issued, drawn, made and/or accepted and shall be genuine; Debtor shall
have delivered possession of all such instruments to Lender within three (3)
Business Days of Debtor's receipt thereof; the issuer, drawer, maker, and/or
acceptor thereof shall have no defenses (including defenses of any party which
would be available in an action on a simple contract and the defenses of want or
failure of consideration, nonperformance of any condition precedent,
non-delivery, or delivery for a special purpose), right of set-off or claims to
the Accounts; Debtor shall have good title to the Accounts; Debtor shall have no
knowledge that the signature of the issuer, drawer, maker and/or acceptor is
unauthorized; the Accounts shall not have been materially altered; all
signatures shall be genuine and authorized; no defense of any party shall be
good against Debtor; Debtor's transfer of the instruments comprising the
Accounts to Secured Party shall be effective and rightful; and Debtor does not
know of any fact which might impair the validity of the instruments comprising
the Accounts or of Secured Party's Lien thereon.
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3.8 Federal Taxpayer Identification Number. Debtor's federal taxpayer
identification number is 00-0000000.
ARTICLE IV
COVENANTS AND AGREEMENT
Debtor shall at all times comply with the covenants and agreements
contained in this Article IV, from the date hereof and for so long as any part
of the Liabilities are outstanding.
4.1 Change in Location of Debtor. Debtor shall provide written
notification to Secured Party thirty (30) days before the date of any proposed
change in the location of the chief executive office of Debtor.
4.2 Change in Debtor's Name. Debtor shall not change its name, its
identity or its corporate structure without notifying Secured Party of such
change in writing at least thirty (30) days prior to the effective date of such
change. Without the express written consent of Secured Party, however, Debtor
shall not engage in any other business or transaction under any name other than
BLC Commercial Capital or Debtor's name hereunder.
4.3 Delivery of B&I Loan Notes. Debtor shall, within three (3) Business
Days of Debtor's receipt thereof, deliver possession of all B&I Loan Notes to
Lender.
4.4 Maintenance of Existence. Debtor shall maintain Debtor's corporate
existence and remain in good standing and qualified to do business in all
jurisdictions wherein the business transacted by it makes such qualification
necessary except where the failure to so qualify would not have a Material
Adverse Effect.
4.5 Sale, Disposition or Encumbrance of Collateral. Except to the extent
authorized pursuant to Sections 6.3 and 6.13 of the Loan Agreement, Debtor shall
not in any way encumber any of the Collateral (or permit or suffer any of the
Collateral to be encumbered) or sell, assign, lend, rent, lease or otherwise
dispose of or transfer any of the Collateral to or in favor of any Person other
than Secured Party, without the prior written consent of Secured Party.
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4.6 Proceeds of Collateral. Except as otherwise provided under Section
2.13 of the Loan Agreement, Debtor shall deliver to Secured Party promptly upon
receipt all proceeds delivered to Debtor from the sale or disposition of any
Collateral. If instruments are received as proceeds, they shall be, immediately
upon receipt, properly endorsed or assigned and delivered to Lender as
Collateral. This Section 4.6 shall not be construed to permit sales or
dispositions of Collateral except as may be elsewhere expressly permitted by
this Agreement or the Loan Agreement.
4.7 Records Concerning Collateral, Financial Condition. Debtor shall keep
accurate and complete records of the Collateral (including proceeds). These
records shall reflect all facts concerning each Account, including those
pertaining to Debtor's warranties, representations and agreements under this
Agreement. Secured Party may at all reasonable times have access to, examine,
audit, make extracts from and inspect without hindrance or delay Debtor's
records, files and the Collateral.
4.8 Performance of Obligations. Debtor shall promptly perform all of its
obligations under any other agreement or contract of any kind now or hereafter
existing as security for or in connection with the payment of the Liabilities.
4.9 Reimbursement of Expenses. Debtor shall pay to Secured Party all
advances, charges, costs and expenses (including all reasonable costs and
expenses of retaking, holding, preparing for sale and selling or otherwise
realizing upon the Collateral in the event of any default by Debtor and all
reasonable attorneys' fees, legal expenses and court costs), incurred by Secured
Party in connection with the transaction which gives rise to this Agreement or
the exercise of Secured Party's rights and remedies hereunder. Debtor hereby
assumes all liability for the Collateral and any use, possession, maintenance
and management by Debtor of any or all of the Collateral. Debtor shall indemnify
and hold Secured Party harmless from and against and covenants to defend Secured
Party against any and all losses, damages, claims, costs, penalties, liabilities
and expenses, including court costs and attorneys' fees incurred because of,
incident to, or with respect to the Collateral or any use, possession,
maintenance or management thereof by Debtor. All amounts for which Debtor is
liable pursuant to this Section 4.9 shall be due and payable by Debtor to
Secured Party within three (3) Business Days after demand is made therefor. If
Debtor fails to make such payment upon demand, Secured Party may pay such amount
and the same shall be due and payable by Debtor to Secured Party, together with
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interest accruing thereon at the rate applicable from time to time to the
Revolving Loans.
4.10 Further Assurances.
(a) Debtor agrees that from time to time, at the expense of Debtor,
provided that such action would not violate applicable USDA rules or
regulations, Debtor shall promptly execute and deliver all further instruments
and documents, and take all further action, that may be necessary or desirable,
or that Secured Party may reasonably request, in order to perfect and protect
any security interest granted or purported to be granted hereby or to enable
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to the Collateral.
(b) Debtor shall furnish to Secured Party from time to time
statements and schedules further identifying and describing its Collateral and
such other reports in connection with such Collateral as Secured Party may
reasonably request, all in reasonable detail and all in form and substance
satisfactory to Secured Party.
4.11 Insurance. Debtor shall maintain, with financially sound and
reputable insurers, insurance to the extent required under Section 5.6 of the
Loan Agreement.
4.12 Accounts.
(a) Debtor shall immediately notify Secured Party in writing in the
event that any Account ceases to meet the requirements of this Agreement or any
other Loan Document, including any material change in any fact or circumstance
warranted or represented by Debtor herein or in any other Loan Document at any
time furnished by Debtor to Secured Party in connection with the Liabilities.
(b) Subject to the provisions of the B&I Lender's Agreement, the
Loan Note Guarantees, applicable USDA rules and regulations and any USDA Consent
that is subsequently required and entered into by Debtor, Secured Party and
USDA, and Section 6.13 of the Loan Agreement, Debtor shall not modify, extend or
substitute any contract, the terms of which shall at any time have given rise to
an Account, or adjust, settle, discount or compromise any of the Accounts.
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(c) Debtor shall duly perform or cause to be performed all of
Debtor's obligations with respect to the Accounts and the underlying
transactions giving rise to the Accounts.
ARTICLE V
RIGHTS, DUTIES AND POWERS OF SECURED PARTY
The following rights, duties and powers of Secured Party are
applicable regardless of whether an Event of Default shall have occurred and be
continuing:
5.1 Non-judicial Enforcement. Secured Party may enforce its rights
hereunder without prior judicial process or judicial hearing, and to the extent
permitted by applicable law Debtor expressly waives any and all legal rights
which might otherwise require Secured Party to enforce its rights by judicial
process.
5.2 Discharge Encumbrances. Secured Party may at its option but without
any obligation to do so, and after written notice to Debtor of its intent to do
so, discharge any uncontested taxes, liens, security interests or other
encumbrances at any time levied or placed on the Collateral, may pay for
insurance on the Collateral and may pay for the maintenance and preservation of
the Collateral, in each case, only to the extent that Debtor does not do so.
Debtor agrees to reimburse Secured Party immediately and without demand for any
payment so made, plus interest thereon at the rate applicable from time to time
to the Revolving Loans.
5.3 Attorney-in-Fact. Debtor hereby appoints Secured Party as Debtor's
attorney-in-fact, with full authority in the place and stead of Debtor and in
the name of Debtor or otherwise, from time to time in Secured Party's
discretion, but at Debtor's cost and expense, and with notice in due course to
Debtor, and subject to applicable USDA rules and regulations and any USDA
Consent that is subsequently required and entered into by Debtor, Secured Party
and USDA:
(a) to receive, endorse and collect all instruments made payable to
Debtor representing any payment or other distribution in respect of the
Collateral or any part thereof and to give full discharge for the same;
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(b) to endorse any draft drawn by insurers of the Collateral, and
Secured Party may apply any proceeds of such insurance to the Liabilities
(whether or not due);
(c) to take any action and execute any assignment, certificate,
financing statement, notification, document or instrument, which Secured
Party may deem necessary or advisable to accomplish the purposes of this
Agreement;
(d) to execute, assign and endorse negotiable and other instruments
for the payment of money, documents of title or other evidences of
payment, shipment or storage for any form of Collateral on behalf of and
in the name of Debtor;
(e) upon the occurrence and during the continuance of an Event of
Default, to obtain, adjust, sell and cancel any insurance with respect to
the Collateral.
5.4 Transfer of Collateral. Secured Party may assign any or all of the
Indebtedness evidenced by the Liabilities to the extent permitted by Section 9.2
of the Loan Agreement, and upon any such assignment Secured Party may assign any
or all of the Collateral and shall be fully discharged thereafter from all
liability therefor. Upon becoming a party to or assignee under any USDA Consent
that is subsequently required and entered into by Debtor, Secured Party and
USDA, or otherwise receiving the written approval of USDA, any transferee of the
Collateral shall be vested with all rights, powers and remedies of Secured Party
hereunder.
5.5 Cumulative and Other Rights. The rights, powers and remedies of
Secured Party hereunder shall be in addition to all rights, powers and remedies
given by law or in equity. The exercise by Secured Party of any one or more of
the rights, powers and remedies herein shall not be construed as a waiver of any
other rights, powers and remedies.
5.6 Disclaimer of Certain Duties. The powers conferred upon Secured Party
by this Agreement are to protect its interest in the Collateral and shall not
impose any duty upon Secured Party to exercise any such powers. Debtor hereby
agrees that Secured Party shall not be liable for, nor shall the Indebtedness
evidenced by the Liabilities be diminished by, Secured Party's failure to
collect upon, foreclose, sell, take possession of or otherwise obtain value for
the Collateral.
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5.7 Waiver of Notice, Demand, Presentment, etc. Except as otherwise
provided in the Loan Agreement, Debtor hereby waives any demand, notice of
default, notice of acceleration of the maturity of the Liabilities, notice of
intention to accelerate the maturity of the Liabilities, presentment, protest
and notice of dishonor as to any action taken by Secured Party in connection
with this Agreement, any note or other document.
5.8 Account Debtors. To the extent and so long as Secured Party does not
elect to invoke its remedies under Section 2.14 of the Loan Agreement, Debtor
shall continue to collect the Accounts and place such collections into the
Blocked Account or the Servicer Account, or to instruct Account Debtors to make
deposits directly into the Blocked Account or the Servicer Account, as set forth
in Section 2.13 of the Loan Agreement. Secured Party or its designee shall also
have the right (i) to request Accountant to send a request for verification of
Liabilities or Accounts to any Account Debtor, provided, that Secured Party
simultaneously sends notice to Debtor that such request for verification has
been sent to Accountant and, if Accountant fails to send such verification in a
manner satisfactory to Secured Party within thirty (30) days of Secured Party's
request to do so, to send such request for verification; and (ii) to do all
other acts and things necessary to carry out the intent of this Agreement. No
Account Debtor on any Account shall ever be bound to make inquiry as to the
termination of this Agreement or the rights of Secured Party to act hereunder,
but shall be fully protected by Debtor in making payment directly to Secured
Party.
ARTICLE VI
EVENTS OF DEFAULT
6.1 Events of Default. Any event constituting an Event of Default under
the Loan Agreement shall also constitute an Event of Default under this
Agreement.
ARTICLE VII
REMEDIES
7.1 Remedies. Upon the occurrence and during the continuance of any Event
of Default, and subject to applicable USDA rules and regulations and any USDA
Consent that is subsequently required and entered into by Debtor, Secured Party
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and USDA, Secured Party may take any or all of the following actions without
notice (except where expressly required below) or demand to Debtor:
(a) Declare all or part of the Indebtedness pursuant to the
Liabilities immediately due and payable and enforce payment of the same by
Debtor.
(b) Exercise in respect of the Collateral all of the rights and
remedies of a Secured Party on default under the UCC.
(c) Take possession of the Collateral, or at Secured Party's request
Debtor shall, at Debtor's cost, assemble the Collateral and make it
available at a location to be specified by Secured Party which is
reasonably convenient to Debtor and Secured Party. The risk of accidental
loss or damage to or diminution in value of Collateral shall be on Debtor,
and Secured Party shall have no liability whatsoever for failure to obtain
or maintain insurance, nor to determine whether any insurance ever in
force is adequate as to amount or as to risk insured.
(d) Sell or lease, in one or more sales or leases and in one or more
parcels, or otherwise dispose of any or all of the Collateral in its then
condition or in any other commercially reasonable manner as Secured Party
may elect, in a public or private transaction, at any location as deemed
reasonable by Secured Party (including Debtor's premises), either for cash
or credit or for future delivery and (unless prohibited by the UCC, as
adopted in any applicable jurisdiction) Secured Party may be the purchaser
of any or all Collateral so sold and may apply against the purchase price
therefor any Liabilities secured hereby. Any such sale or transfer by
Secured Party either to itself or to any other Person shall be absolutely
free from any claim or right by Debtor, including any equity or right of
redemption, stay or appraisal which Debtor has or may have under any rule
of law, regulation or statute now existing or hereafter adopted. Upon any
such sale or transfer, Secured Party shall have the right to deliver,
assign and transfer to the purchaser or transferee thereof the Collateral
so sold or transferred. It shall not be necessary that the Collateral or
any part thereof be present at the location of any such sale or transfer.
Secured Party may, at its discretion, provide for a public sale, and any
such public sale shall be held at such time or times within ordinary
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business hours and at such place or places as Secured Party may fix in the
notice of such sale. Secured Party shall not be obligated to make any sale
pursuant to any such notice. Secured Party may, without notice or
publication, adjourn any public or private sale by announcement at any
time and place fixed for such sale, and such sale may be made at any time
or place to which the same may be so adjourned. In the event any sale or
transfer hereunder is not completed or is defective in the opinion of
Secured Party, such sale or transfer shall not exhaust the rights of
Secured Party hereunder, and Secured Party shall have the right to cause
one or more subsequent sales or transfers to be made hereunder. In the
event that any of the Collateral is sold or transferred on credit, or to
be held by Secured Party for future delivery to a purchaser or transferee,
the Collateral so sold or transferred may be retained by Secured Party
until the purchase price or other consideration is paid by the purchaser
or transferee thereof, but in the event that such purchaser or transferee
fails to pay for the Collateral so sold or transferred or to take delivery
thereof, Secured Party shall incur no liability in connection therewith.
If only part of the Collateral is sold or transferred such that the
Liabilities remain outstanding (in whole or in part), Secured Party's
rights and remedies hereunder shall not be exhausted, waived or modified,
and Secured Party is specifically empowered to make one or more successive
sales or transfers until all the Collateral shall be sold or transferred
and all the Liabilities are paid. In the event that Secured Party elects
not to sell the Collateral, Secured Party retains its rights to lease or
otherwise dispose of or utilize the Collateral or any part or parts
thereof in any manner authorized or permitted by law or in equity, and to
apply the proceeds of the same towards payment of the Liabilities. Each
and every method of disposition of the Collateral described in this
Subsection 7.1(d) shall constitute disposition in a commercially
reasonable manner.
(e) Take possession of all books and records of Debtor pertaining to
the Collateral. Secured Party shall have the authority to enter upon any
real property or improvements thereon in order to obtain any such books or
records, or any Collateral located thereon, and remove the same therefrom
without liability.
(f) Apply proceeds of the disposition of Collateral to the
Liabilities in any manner elected by Secured Party and
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permitted by the UCC or otherwise permitted by law or in equity. Such
application may include the reasonable expenses of retaking, holding,
preparing for sale or other disposition, and the reasonable attorneys'
fees and legal expenses incurred by Secured Party. Any surplus of proceeds
held by Secured Party after payment in full of all Liabilities shall be
paid over to Debtor or to whomsoever may be lawfully entitled to receive
such surplus.
(g) Appoint any party as agent to perform any act or acts necessary
or incident to any sale or transfer by Secured Party of the Collateral.
Additionally, any sale or transfer hereunder may be conducted by an
auctioneer or any officer or agent of Secured Party.
(h) Subject to the provisions of Section 7.3(a) of the Loan
Agreement, apply and set-off (i) any deposits of Debtor held by Secured
Party; (ii) all claims of Debtor against Secured Party, now or hereafter
existing; (iii) any other property, rights or interests of Debtor which
come into the possession or custody or under the control of Secured Party;
and (iv) the proceeds of any of the foregoing as if the same were included
in the Collateral. Secured Party agrees to notify Debtor promptly after
any such set-off or application; provided, that the failure of Secured
Party to give any such notice shall not affect the validity of such
set-off or application. The rights of Secured Party under this Subsection
7.1(h) are in addition to any other rights and remedies, including any
other rights of set-off.
(i) Demand, collect, settle, compromise any amounts due, give
acquittances for, prosecute or defend any action which may be in relation
to any monies due or to become due by virtue of, the Accounts;
(j) Sell, transfer or assign or otherwise deal in the Accounts or
the proceeds thereof, as fully and effectively as if Secured Party were
the absolute owner thereof;
(k) Extend the time of payment of any of the Accounts, to grant
waivers and make any allowance or other adjustment with reference thereto;
and
(l) Endorse the name of Debtor on notes, checks or other evidences
of payments on Collateral that may come into
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possession of Secured Party and deliver the same to Document Agent.
7.2 Settlement of Accounts. In the event that Secured Party exercises its
right to settle or adjust any disputes or claims with Account Debtors on behalf
of Debtor for an amount less than the original Account in dispute, Secured Party
shall not be obligated to credit the Liabilities in an amount in excess of the
amount that Secured Party receives as payment on such disputed Account. Any
exercise by Secured Party of its rights in and to the Accounts shall, as may be
applicable, be a full and complete release, discharge and acquittance of the
Account Debtor with respect to such Account, and Debtor shall take any action as
may be reasonably required by Secured Party in connection therewith, subject to
applicable USDA rules and regulations and any USDA Consent that is subsequently
required and entered into by Debtor, Secured Party and USDA.
7.3 Servicing of B&I Loans. Upon the occurrence and during the continuance
of any Event of Default, subject to applicable USDA rules and regulations and
any USDA Consent that is subsequently required and entered into by Debtor,
Secured Party and USDA, Secured Party or its designee may monitor, manage, and
service any or all of the Notes Receivable, including the Sold Notes Receivable,
and Debtor's relationship with the Term Loan Debtors and other customers of
Debtor, on the terms and conditions set forth in Section 7.3(d) of the Loan
Agreement.
7.4 Liability for Deficiency. If any action of Secured Party hereunder
results in a partial reduction of the Liabilities, such action shall not release
Debtor from its liability to Secured Party for any unpaid Liabilities, including
costs, charges and expenses incurred in the liquidation of Collateral, together
with interest thereon, and the same shall be immediately due and payable to
Secured Party at Secured Party's address set forth in the opening paragraph
hereof.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Notices. Except as otherwise provided herein, whenever this Agreement
provides that any notice, demand, request, consent, approval, declaration or
other communication shall or may be given to or served upon any of the parties
by another, or whenever any of the parties desires to give or serve upon another
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any communication with respect to this Agreement, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and shall be delivered (a) in person with receipt acknowledged, or (b)
by facsimile with receipt confirmed, or (c) by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
(a) If to Secured Party, at:
Transamerica Business Credit Corporation
Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Account Executive - BLC Commercial
Facsimile: (000) 000-0000
and
Transamerica Business Credit Corporation
0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
With copies to:
Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to Debtor, at:
BLC Commercial Capital Corp.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxxxxxx
President
Facsimile: (000) 000-0000
With copies to:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Simeon Gold, Esq.
Facsimile: (000) 000-0000
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or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered or
sent by facsimile, with receipt acknowledged or confirmed, or three (3) Business
Days after the same shall have been deposited in the United States mail. Failure
or delay in delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to the persons designated above to receive
copies shall in no way adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other communication.
8.2 Amendments and Waivers. Secured Party's acceptance of partial or
delinquent payments or any forbearance, failure or delay by Secured Party in
exercising any right, power or remedy hereunder shall not be deemed a waiver of
any Obligation of Debtor, or of any right, power or remedy of Secured Party; and
no partial exercise of any right, power or remedy shall preclude any other or
further exercise thereof. Secured Party may remedy any default hereunder or in
connection with the Liabilities without waiving the default so remedied. Debtor
hereby agrees that if Secured Party agrees to a waiver of any provision
hereunder, or an exchange of or release of the Collateral, any such action shall
not constitute a waiver of any of Secured Party's other rights or of Debtor's
Liabilities hereunder. This Agreement represents the final Agreement between the
parties with respect to the subject matter hereof and may be amended only by an
instrument in writing executed jointly by Debtor and Secured Party and may be
supplemented only by documents delivered or to be delivered in accordance with
the express terms hereof.
8.3 Subrogation. Until all Indebtedness in connection with the Liabilities
shall have been paid in full, Debtor shall have no right to subrogation or to
enforce any remedy or participate in any Collateral or security whatsoever now
or hereafter held by Secured Party.
8.4 Continuing Security Agreement.
(a) This Agreement shall constitute a continuing security agreement,
and all representations and warranties, covenants and agreements shall, as
applicable, apply to all future as well as existing transactions. Provisions of
this
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Agreement, unless by their terms exclusive, shall be in addition to other
agreements between the parties.
(b) To the extent that any payments on the Liabilities or proceeds
of the Collateral are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, debtor in
possession, receiver or other party under any bankruptcy law, common law or
equitable cause, then to such extent the Liabilities so satisfied shall be
revived and continue as if such payment or proceeds had not been received by
Secured Party, and Secured Party's security interests, rights, powers and
remedies hereunder shall continue in full force and effect.
(c) In the event that the Liabilities are structured such that there
are times when no Indebtedness is owing thereunder, this Agreement shall remain
valid and in full force and effect as to all subsequent Indebtedness included in
the Liabilities, provided Secured Party has not in the interim period executed a
written release or termination statement or returned possession or reassigned
the Collateral to Debtor.
8.5 Termination. When all Liabilities secured hereby shall have been paid
in full and Secured Party's obligation to make Revolving Loans has terminated,
this Agreement and the Liens created hereby shall terminate. Promptly
thereafter, Secured Party shall reassign and deliver to Debtor, without
recourse, all Collateral in its possession, and shall execute a written release
or termination statement.
8.6 CONSTRUCTION. THIS AGREEMENT, THE LOAN AGREEMENT, THE REVOLVING CREDIT
NOTE, AND THE OTHER LOAN DOCUMENTS ARE CONTRACTS MADE UNDER AND SHALL, IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY, AND PERFORMANCE, AND
ALL CLAIMS AND CAUSES OF ACTION RELATED HERETO AND THERETO, WHETHER SOUNDING IN
CONTRACT OR IN TORT, BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE UNITED STATES OF AMERICA AND THE STATE OF ILLINOIS, AS SUCH LAWS ARE NOW IN
EFFECT (WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF LAWS)
AND, WITH RESPECT TO USURY LAWS, IF ANY, APPLICABLE TO SECURED PARTY AND TO THE
EXTENT ALLOWED THEREBY, AS SUCH LAWS MAY HEREAFTER BE IN EFFECT WHICH ALLOW A
HIGHER MAXIMUM NONUSURIOUS INTEREST RATE THAN SUCH LAWS NOW ALLOW; PROVIDED,
THAT IF ANY OF THE COLLATERAL SHALL BE LOCATED IN ANY JURISDICTION OTHER THAN
ILLINOIS, THE LAWS OF SUCH JURISDICTION SHALL GOVERN THE METHOD, MANNER AND
PROCEDURE FOR FORECLOSURE OF SECURED PARTY'S LIEN UPON SUCH COLLATERAL AND THE
ENFORCEMENT OF SECURED PARTY'S OTHER REMEDIES IN RESPECT OF SUCH
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COLLATERAL TO THE EXTENT THAT THE LAWS OF SUCH JURISDICTION ARE DIFFERENT FROM
OR INCONSISTENT WITH THE LAWS OF ILLINOIS. IT IS THE INTENT OF ALL OF THE
PARTIES HERETO THAT THE LAWS OF THE STATE OF ILLINOIS SHALL GOVERN THIS
AGREEMENT, THE REVOLVING CREDIT NOTE, AND THE OTHER LOAN DOCUMENTS, AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
8.7 WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, DEBTOR AND SECURED PARTY HEREBY WAIVE, TO THE FULL EXTENT PERMITTED
BY APPLICABLE LAW, THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE REVOLVING CREDIT NOTE
OR THE LOAN AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY AND THE RELATIONSHIP
THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. SECURED PARTY AND DEBTOR EACH ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH SHALL CONTINUE TO
RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. SECURED PARTY AND DEBTOR
FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT, THE LOAN AGREEMENT, THE REVOLVING CREDIT NOTE, OR ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE REVOLVING LOANS. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
8.8 Successors and Assigns. This Agreement shall be binding on Debtor,
Debtor's successors and assigns, and inure to the benefit of Secured Party and
its successors and assigns. Debtor shall not assign this Agreement or any rights
or
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obligations hereunder without the prior written consent of Secured Party.
8.9 Conflict with USDA Consent. In the event any provision of this
Agreement conflicts or is inconsistent with any USDA Consent that is
subsequently required and entered into by Debtor, Secured Party and USDA, the
relevant provisions of such USDA Consent shall be controlling.
8.10 Severability. In the event that any one or more of the provisions
contained in this Agreement shall, for any reason, be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement.
8.11 Counterparts. This Agreement may be executed in counterparts and it
shall not be necessary that the signatures of all parties hereto be contained on
any one counterpart hereof; each counterpart shall be deemed as original, but
all of such counterparts together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
DEBTOR:
BLC COMMERCIAL CAPITAL CORP.,
a Florida corporation
By:
---------------------------
Xxxxxx X. Xxxxxxxxxxxx
President
SECURED PARTY:
TRANSAMERICA BUSINESS CREDIT
CORPORATION, a Delaware corporation
By:
---------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President
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