EXHIBIT 10.3
ACCOUNTS RECEIVABLE
FINANCING SECURITY AGREEMENT
[SECURITY AGREEMENT]
BETWEEN
ISRAEL DISCOUNT BANK OF NEW YORK
000 XXXXX XXXXXX
XXX XXXX, XX 00000
AND
JLM COUTURE, INC.
000 XXXX 00XX XXXXXX
XXX XXXX, XX 00000
Israel Discount Bank of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Gentlemen:
This Agreement states the terms and conditions upon which,
effective as of the date of acceptance by you, we may obtain
loans and other financial accommodations from you for our general
corporate and business purposes upon the security referred to
herein. We shall be, if two or more in number, jointly and
severally bound hereunder.
Section 1. DEFINITIONS.
1.1. All terms used herein which are defined in Article 1 or
Article 9 of the Uniform Commercial Code ("UCC") shall have the
meanings given therein, unless otherwise defined in this
Agreement and all references to the plural herein shall also mean
the singular.
1.2. "Accounts" shall mean all of our present and future
accounts, contract rights, general intangibles, chattel paper,
documents and instruments, as such terms are defined in the UCC,
including, without limitation, all obligations for the payment of
money arising out of our sale, lease or other disposition of
goods or other property or rendition of services.
1.3. "Account Debtor" shall mean each debtor or obligor in any
way obligated on or in connection with any Account.
1.4. "Collateral" shall have the meaning set forth in Section 4.1
hereof.
1.5. "Eligible Accounts" shall mean Accounts created by us in the
ordinary course of business arising out of our sale of goods or
rendition of services, which are and at all times shall continue
to be acceptable to you in all respects. Standards of
eligibility may be fixed and revised from time to time solely by
you in your exclusive judgment. In determining eligibility, you
may, but need not, rely on agings, reports and schedules of
Accounts furnished by us, but reliance by you thereon from time
to time shall not be deemed to limit your right to revise
standards of eligibility at any time as to both our present and
future Accounts. In general, an Account shall not be deemed
eligible unless: (a) the Account Debtor on such Account is and at
all times continues to be acceptable to you, (b) such Account
complies in all respects with the representations, covenants and
warranties hereinafter set forth, and (c) no more than 150 days
have elapsed since the invoice date of such Account.
1.6. "Events of Default" shall have the meaning set forth in
Section 8.1 hereof.
1.7. "Maximum Credit" shall mean the amount of $ 2,000,000.
1.8. "Net Amount of Eligible Accounts" shall mean the gross
amount of Eligible Accounts less sales, excise or similar taxes,
and less returns, discounts, claims, credits and allowances of
any nature at any time issued, owing, granted, outstanding,
available or claimed.
1.9. "Obligations" shall mean any and all loans, indebtedness,
liabilities and obligations of any kind owing by us to you,
however evidenced, whether as principal, guarantor or otherwise,
whether arising under this Agreement, any supplement hereto, or
otherwise, whether now existing or hereafter arising, whether
direct or indirect, absolute or contingent, joint or several, due
or not due, primary or secondary, liquidated or unliquidated,
secured or unsecured, original, renewed or extended, and whether
arising directly or acquired from others (including, without
limitation, your participations or interests in our obligations
to others) and including, without limitation, your charges,
commissions, interest, expenses, costs and attorneys' fees
chargeable to us in connection with all of the foregoing.
1.10. "Records" shall have the meaning set forth in Section
4.l(h) hereof.
1.11. "Renewal Date" shall have the meaning set forth in Section
9.1 hereof.
Section 2. LOANS.
2.1. You shall, in your discretion, make loans to us from time to
time, at our request, of up to Eighty percent ( 80 %) of the
Net Amount of Eligible Accounts.
2.2 All loans shall be charged to a loan account
in our name on your books. You shall render to us each month a
statement of our loan account which shall be considered correct
and deemed accepted by, and conclusively binding upon, us as an
account stated. Repayments to us shall be credited to our loan
account on your books, as received.
2.3. Except in your sole discretion, the outstanding aggregate
principal amount of all loans made by you to us hereunder, under
any supplement hereto or evidenced by any promissory note, shall
not exceed the Maximum Credit at any time. Without limiting your
right to demand payment of the Obligations, or any portion
thereof, in accordance with any other terms of this Agreement, or
any supplement hereto, in the event that the outstanding
aggregate principal amount of loans made by you to us exceeds the
Maximum Credit or the formula set forth in Section 2.1 hereof, we
shall remain liable therefor and the entire amount of such
excess(es) shall, at your option, become immediately due and
payable, upon your demand.
2.4. At your option, all principal, interest, fees, commissions,
costs, expenses or other charges with respect to this Agreement
or any supplement hereto (all of which shall be cumulative and
not exclusive) and any and all loans and advances made by you to
us may be charged directly to any of our accounts maintained with
you.
2.5. All loans shall be payable at your office specified above or
at such other place as you may hereafter designate from time to
time and, at your option and upon your request, we shall execute
and deliver to you one or more promissory notes in form and
substance satisfactory to you to further evidence such loans.
Section 3. INTEREST AND FEES.
3.1. Interest shall be payable by us to you on the first day of
each month upon the closing daily balances in our loan account
for each day during the immediately preceding month, at a rate
equal to your prime loan rate (presently 8-1/2 percent per annum) from
time to time in effect, whether or not such rate is the best rate
available from you. Any change in such rate of interest shall be
effective on the date a change in your prime loan rate occurs,
without notice to us. The rate of interest in effect hereunder
on the date hereof, expressed in terms of simple interest, is
Eight and 1/2 percent ( 8-1/2 percent) per annum.
3.2. On and after the date of any Event of Default or termination
or non-renewal hereof, interest on all outstanding unpaid
Obligations shall accrue at a rate equal to two percent (2%) per
annum in excess of the pre-default rate set forth above from the
date of such Event of Default or termination or non-renewal, and
all interest accruing hereunder shall thereafter be payable on
demand.
3.3. Interest shall be calculated on the basis of a 360-day year
and actual number of days elapsed and shall be included in each
monthly statement of our loan account. You shall have the right,
at your option, to charge all interest to any of our accounts
maintained with you on the first day of each month, and such
interest shall be deemed to be paid by the first amounts
subsequently credited thereto.
3.4. In no event shall charges constituting interest, payable by
us under this Agreement, exceed the rate permitted under any
applicable law or regulation, and if any part or provision of
this Agreement is in contravention of any such law or regulation,
such part or provision shall be deemed amended to conform
thereto.
3.5. We shall pay to you an annual facility fee in an amount
equal to $ 20,000 initially payable simultaneously with the
execution hereof and $5,000 quarterly thereafter for the term
including all renewal terms after the Initial Term of this
Agreement or so long as any of the Obligations are outstanding.
Section 4. SECURITY INTEREST.
4.1. As security for the prompt performance, observance and
payment in full of all Obligations, we hereby grant to you a
continuing security interest in, a lien upon and a right of
setoff against, and we hereby assign, transfer, pledge and set
over to you the following (which together with any of our other
property in which you may at any time have a security interest or
lien, whether pursuant to this Agreement or any supplement
hereto, or otherwise, are herein collectively referred to as the
"Collateral"): All present and future (a) Accounts; (b) moneys,
securities and other property and the proceeds thereof, now or
hereafter held or received by, or in transit to, you from or for
us, whether for safekeeping, pledge, custody, transmission,
collection or otherwise, and all of our deposits (general or
special), balances, sums and credits with you at any time
existing; (c) all of our right, title and interest, and all of
our rights, remedies, security and liens, in, to and in respect
of the Accounts and other Collateral, including, without
limitation, rights of stoppage in transit, replevin, repossession
and reclamation and other rights and remedies of an unpaid
vendor, lienor or secured party, guaranties or other contracts of
suretyship with respect to the Accounts and other Collateral,
deposits or other security for the obligation of any Account
Debtor, and credit and other insurance; (d) all of our right,
title and interest in, to and in respect of all goods relating
to, or which by sale have resulted in, Accounts including,
without limitation, all goods described in invoices, documents,
contracts or instruments with respect to, or otherwise
representing or evidencing, any Accounts or other Collateral,
including without limitation, all returned, reclaimed or
repossessed goods; (e) all deposit accounts; (f) all books,
records, ledger cards, computer programs, and other property and
general intangibles evidencing or relating to the Accounts, and
any other Collateral or any Account Debtor, together with the
file cabinets or containers in which the foregoing are stored
("Records"); (g) all other general intangibles of every kind and
description, including without limitation, trade names and
trademarks, and the goodwill of the business symbolized thereby,
patents, copyrights, licenses and Federal, State and local tax
refund claims of all kinds and (h) all products and proceeds of
the foregoing, in any form, including, without limitation,
insurance proceeds and any claims against third parties for loss
or damage to or destruction of any or all of the foregoing.
4.2. We shall keep and maintain, at our cost and expense,
satisfactory and complete books and records of all Accounts, all
payments received or credits granted thereon, and all other
dealings therewith. At such times as you may request, we shall
deliver to you all original documents evidencing the sale and
delivery of goods or the performance of services which created
any Accounts, including but not limited to all original
contracts, orders, invoices, bills of lading, warehouse receipts,
delivery tickets and shipping receipts, together with schedules
describing the Accounts and/or written confirmatory assignments
to you of each Account, in form and substance satisfactory to you
and duly executed by us, together with such other information as
you may request. In no event shall the making or the failure to
make or the content of any schedule or assignment or our failure
to comply with the provisions hereof be deemed or construed as a
waiver, limitation or modification of your security interest in,
lien upon and assignment of the Collateral or our
representations, warranties or covenants under this Agreement or
any supplement hereto.
Section 5. COLLECTION AND ADMINISTRATION.
5.1. Until our authority to do so is curtailed or terminated at
any time by you, we shall, at our expense and on your behalf,
collect, as your property and in trust for you, all remittances
and all amounts unpaid on Accounts, and we shall deposit same in
our own account. Upon our default and demand by you we shall on
the day received remit all such collections to you in the form
received duly endorsed by us for deposit with you, unless you
shall direct us otherwise. All amounts collected on Accounts
when received by you shall be credited to our loan account
immediately.
5.2. You or your representatives shall at all times have free
access to and right of inspection of the Collateral and have full
access to and the right to examine and make copies of our
Records, to confirm and verify all Accounts, to perform general
audits and to do whatever else you deem necessary to protect your
interests. You may at any time remove from our premises or
require us or any accountants and auditors employed by us to
deliver any Records and you may, without cost or expense to you,
use such of our personnel, supplies, computer equipment and space
at our places of business as may be reasonably necessary for the
handling of collections. In connection with your periodic audits
of our books and records, we agree to pay you a per diem of
$750.- (maximum of $4,500.- per year).
5.3. We shall immediately upon obtaining knowledge thereof report
to you all reclaimed, repossessed or returned goods, Account
Debtor claims and any other matter affecting the value,
enforceability or collectibility of Accounts. At your request,
any goods reclaimed or repossessed by or returned to us will be
set aside, marked with your name and held by us for your account
and subject to your security interest. All claims and disputes
relating to Accounts are to be promptly adjusted within a
reasonable time, at our own cost and expense. You may, at your
option, settle, adjust or compromise claims and disputes relating
to Accounts which are not adjusted by us within a reasonable
time.
Section 6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
We hereby represent, warrant and covenant to you the following
(which shall survive the execution and delivery of this
Agreement), the truth and accuracy of which, or compliance with,
being a continuing condition of the making of loans hereunder by
you or under any supplement hereto:
6.1. We are and shall be, with respect to all Collateral now
existing or hereafter acquired, the owner of such Collateral free
from any lien, security interest, claim or encumbrance of any
kind, except in your favor and as set forth on Schedule B, if any
and as otherwise consented to in writing by you, and we shall
defend the same at our expense against the claims of all persons.
6.2. The only locations of any Collateral are those addresses
listed on Schedule C annexed hereto and made a part hereof.
Schedule C sets forth the owner and/or operator of the premises
at such addresses for all locations which we do not own and
operate and all mortgages, if any, with respect to the premises.
We shall not remove any Collateral from such locations, without
your prior written consent.
6.3. We will not directly or indirectly sell, lease, transfer,
abandon or otherwise dispose of all or any substantial portion of
our property or assets or consolidate or merge with or into any
other entity or permit any other entity to consolidate or merge
with or into us. We will at all times preserve, renew and keep
in full force and effect our existence as a corporation and the
rights and franchises with respect thereto and continue to engage
in business of the same type as we are engaged as of the date
hereof. We shall give you thirty (30) days prior written notice
of any proposed change in our corporate name which notice shall
set forth the new name.
6.4. Our Records and chief executive office are maintained at the
address referred to below. We shall
not change such location without your prior written consent and
prior to making any such change, we agree to execute any
additional financing statements or other documents or notices
which you may require.
6.5. We shall maintain our shipping forms, invoices and other
related documents in a form satisfactory to you and shall
maintain our books, records and accounts in accordance with
generally accepted accounting principles consistently applied.
We agree to furnish you monthly with accounts receivable agings,
inventory reports (if requested by you), and interim financial
statements (including balance sheet, statement of income and
surplus account, and cash flow statements), and to furnish you,
at any time or from time to time with such other information
regarding our business affairs and financial condition as you may
reasonably request, including, without limitation, balance
sheets, statements of profit and loss, financial statements, cash
flow and other projections, earnings forecasts, schedules, agings
and reports. We hereby irrevocably authorize and direct all
accountants, auditors or other third parties to deliver to you,
at our expense, copies of our financial statements, papers
related thereto, and other accounting records of any nature in
their possession and to disclose to you any information they may
have regarding our business affairs and financial conditions. We
shall furnish you with audited financial statements on an annual
basis certified by independent public accountants selected by us
and acceptable to you. All such statements and information shall
fairly present our financial condition as of the dates and the
results of our operations for the periods, for which the same are
furnished. Any documents, schedules, invoices or other papers
delivered to you may be destroyed or otherwise disposed of by you
one (l) year after the date the same are delivered to you, unless
we make written request therefor and pay all expenses attendant
to their return, in which event you shall return same when your
actual or anticipated need therefor has ceased. We will furnish
you monthly, not later than the 15th of the following month an
aging of the Accounts Receivable, in such detail as you may
require, together with a borrowing certificate in such form and
substance as you may require.
6.6. Each Eligible Account represents a valid and legally
enforceable indebtedness based upon an actual and bona fide sale
and delivery of goods or rendition of services in the ordinary
course of our business which has been finally accepted by the
Account Debtor and for which the Account Debtor is
unconditionally liable to make payment of the amount stated in
each invoice, document or instrument evidencing the Eligible
Account in accordance with the terms thereof, without offset,
defense or counterclaim and will be paid in full at maturity.
6.7. All statements made and all unpaid balances appearing in the
invoices, documents and instruments evidencing each Eligible
Account are true and correct and are in all respects what they
purport to be and all signatures and endorsements that appear
thereon are genuine and all signatories and endorsers have full
capacity to contract and each Account Debtor is solvent and
financially able to pay in full the Eligible Account when it
matures. None of the transactions underlying or giving rise to
any Account shall violate any state or federal laws or
regulations, and all documents relating to the Accounts shall be
legally sufficient under such laws or regulations and shall be
legally enforceable in accordance with their terms and all
recording, filing and other requirements of giving public notice
under any applicable law have been duly complied with.
6.8. We shall promptly notify you in writing of the details of
any loss, damage, investigation, action, suit, proceeding or
claim relating to the Collateral or which would result in any
material adverse change in our business, properties, assets,
goodwill or condition, financial or otherwise.
Section 7. SPECIFIC POWERS.
7.1. We hereby constitute you and any agent or designee of yours,
as our attorney-in-fact, at our own cost and expense, to exercise
at any time all or any of the following powers which, being
coupled with an interest, shall be irrevocable until all
Obligations have been paid in full: (a) to receive, take,
endorse, assign, deliver, accept and deposit, in your or our
name, any and all checks, notes, drafts, remittances and other
instruments and documents relating to the Collateral; (b) on or
after the occurrence of an Event of Default to receive, open and
dispose of all mail addressed to us and to notify postal
authorities to change the address for delivery thereof to such
address as you may designate; (c) to transmit to Account Debtors
notice of your interest therein and to request from such Account
Debtors at any time, in your or our name or that of your
designee, information concerning the Accounts and the amounts
owing thereon; (d) on or after the occurrence of an Event of
Default, to notify Account Debtors to make payment directly to
you; (e) on or after the occurrence of an Event of Default, to
take or bring, in your or our name, all steps, actions, suits or
proceedings deemed by you necessary or desirable to effect
collection of the Collateral; and (f) to execute in our name and
on our behalf any UCC financing statements or amendments thereto.
We hereby release you and your officers, employees and designees,
from any liability arising from any act or acts under this
Agreement or in furtherance thereof, whether of omission or
commission, and whether based upon any error of judgment or
mistake of law or fact.
Section 8. EVENTS OF DEFAULT AND REMEDIES.
8.1. All Obligations shall be, at your option, immediately due
and payable without notice or demand (notwithstanding any
deferred or installment payments allowed, if any, by any
instrument evidencing or relating to the Obligations) and any
provision of this Agreement or any supplement hereto, as to
future loans and advances by you shall, at your option, terminate
forthwith, upon the termination or non-renewal of this Agreement
or upon the occurrence of any one or more of the following
("Events of Default"): (a) if we shall fail to pay to you when
due any amounts owing to you under any Obligation, or shall
breach any of the terms, covenants, conditions or provisions of
this Agreement, any supplement hereto or any other agreement
between you and us or between any other third person or entity
and us; (b) if any guarantor, endorser or other person liable on
the Obligations shall terminate or breach any of the terms,
covenants, conditions or provisions of any guarantee, endorsement
or other agreement of such person with, or in favor of, you or
any other third person or entity; (c) if any representation,
warranty, or statement of fact made to you at any time by us or
on our behalf is false or misleading in any material respect; (d)
if we, or any guarantor, endorser or other person liable on the
Obligations, shall become insolvent, fail to meet our or their
debts as they mature, call a meeting of creditors or have a
creditors' committee appointed, make an assignment for the
benefit of creditors, commence or have commenced against us or
them any action or proceeding for relief under any bankruptcy
law, or if a judgment is rendered against us or them, or if we or
they suspend or discontinue doing business for any reason, or if
a receiver, custodian or trustee of any kind is appointed for us
or them or any of our or their respective properties; (e) if
there shall be a material adverse change in our business, assets
or condition (financial or otherwise) from the date hereof; (f)
if there is any change in our majority control or ownership; or
(g) if at any time you shall, in your sole discretion, consider
the Obligations insecure or any part of the Collateral unsafe,
insecure or insufficient and we shall not on your demand furnish
other Collateral or make payment on account, satisfactory to you.
8.2. Upon the occurrence of any Event of Default and at any time
thereafter, you shall have the right (in addition to any other
rights you may have under this Agreement, any supplement hereto
or otherwise) without notice to us, at any time and from time to
time, in your discretion, with or without judicial process or the
aid or assistance or others and without cost to you to
appropriate, set off and apply to the payment of any or all of
the Obligations, any or all Collateral, in such manner as you
shall in your sole discretion determine; to enforce payment of
any Collateral; to settle, compromise or release in whole or in
part, any amounts owing on the Collateral; to prosecute any
action, suit or proceeding with respect to the Collateral; to
extend the time of payment of any and all Collateral; to make
allowances and adjustments with respect thereto; to issue credits
in your or our name; to sell, assign and deliver the Collateral
(or any part thereof) at public or private sale, at broker's
board, for cash, upon credit or otherwise, at your sole option
and discretion, and you may bid or become purchaser at any such
sale, if public, free from any right of redemption which is
hereby expressly waived.
8.3 We shall, in the manner requested by you from time to time,
direct that all proceeds of Accounts
letters of credit, bankers? acceptances and other proceeds of
Collateral shall be payable to a lock box or post
office box designated by you and under your control and/or
deposited into a blocked account under your control
and/or deposited into an account maintained in your name and
under your control and in connection therewith
shall execute such lock box, blocked account or other agreement
as you in your sole discretion shall specify.
8.4. We agree that the giving of ten (10) days notice by you,
sent by certified mail, postage prepaid, to our address set
forth below, designating the place and time of any public sale or
of the time after which any private sale or other intended
disposition of the Collateral is to be made, shall be deemed to
be reasonable notice thereof and we waive any other notice with
respect thereto.
8.5. The net cash proceeds resulting from the exercise of any of
the foregoing rights or remedies shall be applied by you to the
payment of the Obligations in such order as you may elect, and we
shall remain liable to you for any deficiency. Without limiting
the generality of the foregoing, if you enter into any credit
transaction, directly or indirectly, in connection with the
disposition of any Collateral, you shall have the option, at any
time, in your sole discretion, to reduce the Obligations by the
principal amount of such credit transaction or to defer the
reduction thereof until actual receipt by you of cash or other
immediately available funds in connection therewith.
8.6. The enumeration of the foregoing rights and remedies is not
intended to be exclusive, and such rights and remedies are in
addition to and not by way of limitation of any other rights or
remedies you may have under the UCC or other applicable law. You
shall have the right, in your sole discretion, to determine which
rights and remedies, and in which order any of the same, are to
be exercised, and to determine which Collateral is to be
proceeded against and in which order, and the exercise of any
right or remedy shall not preclude the exercise of any others,
all of which shall be cumulative.
8.7. No act, failure or delay by you shall constitute a waiver of
any of your rights and remedies. No single or partial waiver by
you of any provision of this Agreement or any supplement hereto,
or breach or default thereunder, or of any right or remedy which
you may have shall operate as a waiver of any other provision,
breach, default, right or remedy or of the same provision,
breach, default, right or remedy on a future occasion.
8.8. We waive presentment, notice of dishonor, protest and notice
of protest of all instruments included in or evidencing any of
the Obligations or the Collateral and any and all notices or
demands whatsoever (except as expressly provided herein). You
may, at all times, proceed directly against us to enforce payment
of the Obligations and shall not be required to take any action
of any kind to preserve, collect or protect your or our
rights in the Collateral.
Section 9. EFFECTIVE DATE; TERMINATION; COSTS.
9.1. This Agreement shall become effective upon acceptance by you
and shall continue in full force and effect for a term ending one
(1) year from the date hereof (the "Initial Term") and shall
automatically renew from year to year thereafter (the ?Renewal
Term?), unless sooner terminated pursuant to the terms hereof.
Either party may terminate this Agreement on the last day of the
Initial Term at any time and thereafter by giving the other party
at least sixty (60) days prior written notice by registered or
certified mail, return receipt requested, and, in addition, you
shall have the right to terminate this Agreement immediately at
any time upon the occurrence of an Event of Default. No
termination of this Agreement, however, shall relieve or
discharge us of our duties, obligations and covenants hereunder
until all Obligations have been paid in full, and your continuing
security interest in the Collateral shall remain in effect until
such Obligations have been fully discharged.
9.2. This Agreement, any supplement hereto, and any agreements,
instruments or documents delivered or to be delivered in
connection herewith represent our entire agreement and
understanding concerning the subject matter hereof and thereof,
and supersede all other prior and contemporaneous agreements,
understandings, negotiations and discussions, representations,
warranties, commitments, offers, contracts, whether oral or
written.
9.3. No provision hereof shall be modified or amended orally or
by course of conduct but only by a written instrument expressly
referring hereto signed by both parties.
9.4. Upon your request we shall pay to you, or reimburse you for,
all sums, costs and expenses which you may pay or incur in
connection with or related to the negotiation, preparation,
consummation, administration and enforcement of this Agreement,
any supplement hereto, and all other agreements, instruments and
documents in connection herewith and therewith, and the
transactions contemplated hereunder and thereunder, together with
any amendments, supplements, consents or modifications which may
be hereafter made or entered into in respect hereof or thereof,
and all efforts made to defend, protect or enforce the security
interest granted herein or therein or in enforcing payment of the
Obligations, including without limitation, appraisal fees, filing
fees and taxes, title insurance premiums, recording taxes,
expenses for searches, expenses heretofore incurred by you and
from time to time hereafter during the course of periodic field
examinations of the Collateral and our operations, wire transfer
fees, check dishonor fees, the fees and disbursements of counsel
to you, all fees and expenses for the service and filing of
papers, premiums on bonds and undertakings, fees of marshals,
sheriffs, custodians, auctioneers and others, travel expenses and
all court costs and collection charges, all of which shall be
part of the Obligations and shall accrue interest after demand
thereof at a rate equal to the highest rate then payable on any
of the Obligations.
Section 10. NOTICES.
10.1. All notices, requests and demands to or upon the respective
parties hereto shall be deemed to have been duly given or made:
if by hand, telex, telegram or facsimile, immediately upon
sending; if by Federal Express, Express Mail or any other
overnight delivery service, one (l) day after dispatch; and if
mailed by certified mail, return receipt requested, five (5) days
after mailing. All notices, requests and demands are to be given
or made to the respective parties at the address (or to such
other addresses as either party may designate by notice in
accordance with the provisions of this paragraph) set forth
herein.
Section 11. WAIVER OF JURY TRIAL; JURISDICTION; CHOICE OF LAW.
11.1. WE AND YOU EACH HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING OF ANY KIND ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AND SUPPLEMENT HERETO, THE
OBLIGATIONS, THE COLLATERAL OR ANY SUCH OTHER TRANSACTION. We
hereby waive rights of setoff and rights to interpose
counterclaims in the event of any litigation with respect to any
matter connected with this Agreement, any supplement hereto, the
Obligations, the Collateral or any other transaction between the
parties and we hereby irrevocably consent and submit to the
non-exclusive jurisdiction of the Supreme Court of the State of
New York and the United States District Court for the Southern
District of New York in connection with any action or proceeding
of any kind arising out of or relating to this Agreement, any
supplement hereto, the Obligations, the Collateral or any such
other transaction.
11.2. With respect to any such action, proceeding or claim we
consent to accept service of process and any legal summons,
complaint or other process to be served upon us and consent that
same may be served by mailing a copy by certified and/or regular
mail directed to us at our address set forth below. Such mailing
shall be deemed personnel service and shall be legal and binding
upon us in any such action, proceeding or claim. Within thirty
(30) days after such mailing, we shall appear, answer, or
otherwise move in respect of such summons, complaint or other
process. If we fail to appear or answer within the thirty (30)
day period, we shall be deemed in default and judgment may be
entered by you against us for the amount of the claim and other
relief requested therein.
11.3. This Agreement and all transactions thereunder shall be
deemed to be consummated in the State of New York and shall be
governed by and interpreted in accordance with the laws of that
State. If any part or provision of this Agreement is invalid or
in contravention of any applicable law or regulation, such part
or provision shall be severable without affecting the validity of
any other part or provision of this Agreement.
Very truly yours,
By:
Title:
Address:
Facsimile No.:
Accepted at New York, New York
on , 000
XXXXXX XXXXXXXX XXXX XX XXX XXXX
By: ___________________________
Title: ________________________
By: ___________________________
Title: ________________________
