EXHIBIT 10.9.13
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COMMERCIAL SECURITY AGREEMENT
THIS COMMERCIAL SECURITY AGREEMENT is entered into between
Chempower, Inc., an Ohio corporation with its principal offices
at 000 Xxxx Xxxxxxxxxx Xxxx Xxxx, Xxxxx, Xxxx 00000 (referred to
below as either "BORROWER" or "GRANTOR"); and First National Bank
of Ohio, a national Banking Association with its principal
offices at 000 X. Xxxx Xxxxxx, Xxxxx, Xxxx 00000 (referred to
below as "LENDER").
GRANT OF SECURITY INTEREST. For valuable consideration, Grantor
grants to Lender a security interest in the Collateral to secure
the Indebtedness and agrees that Lender shall have the rights
stated in this Agreement with respect to the Collateral, in
addition to all other rights which Lender may have by law.
DEFINITIONS. The following words shall have the following
meanings when used in this Agreement. Terms not otherwise
defined in this Agreement or in the Loan Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code.
All references to dollar amounts shall mean amounts in lawful
money of the United States of America.
Agreement. The word "AGREEMENT" means this Commercial
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Security Agreement, as this Commercial Security Agreement
may be amended or modified from time to time, together with
all exhibits and schedules attached to this Commercial
Security Agreement from time to time.
Borrower. The word "BORROWER" means Chempower, Inc. and its
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successors and assigns.
Collateral. The word "COLLATERAL" means the following
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described property of Grantor, whether now owned or
hereafter acquired, whether now existing or hereafter
arising, and wherever located:
All inventory, accounts, contract rights, equipment and
general intangibles.
In addition, the word "Collateral" includes all the
following, whether now owned or hereafter acquired, whether
now existing or hereafter arising, and wherever located:
(a) All attachments, accessions, accessories, tools,
parts, supplies, increases, and additions to and all
replacements of and substitutions for any property
described above.
(b) All products and produce of any of the property
described in this Collateral section.
(c) All accounts, contract rights, general
intangibles, instruments, rents, monies, payments, and
all other rights, arising out of a sale, lease, or
other disposition of any of the property described in
this Collateral section.
(d) All proceeds (including insurance proceeds) from
the sale, destruction, loss, or other disposition of
any of the property described in this Collateral
section.
(e) All records and data relating to any of the
property described in this Collateral section, whether
in the form of a writing, photograph, microfilm,
microfiche, or electronic media, together with all of
Grantor's right, title, and interest in and to all
computer software required to utilize, create,
maintain, and process any such records or data on
electronic media.
Event of Default. The words "EVENT OF DEFAULT" mean and
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include, without limitation any of the Events of Default set
forth in the Loan Agreement or below in the section titled
"Events of Default."
Grantor. The word "GRANTOR" means Chempower, Inc.
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Guarantor. The word "GUARANTOR" means and includes without
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limitation each and all of the guarantors, sureties, and
accommodation parties in connection with the Indebtedness.
Indebtedness. The word "INDEBTEDNESS" means the
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indebtedness evidenced by the Note, including all principal
and interest, together with all other indebtedness and costs
and expenses for which Grantor or Borrower is responsible
under this Agreement or under any of the Related Documents.
Loan Agreement means the Loan Agreement between Borrower and
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Lender dated as of February 28, 1997.
Lender. The word "LENDER" means First National Bank of
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Ohio, its successors and assigns.
Note. The word "NOTE" as used herein shall mean the Note
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referred to in the Loan Agreement which is the promissory
note of Borrower to Lender dated as of February 28, 1997 in
the maximum principal amount of $15,700,000; together with
all renewals of, extensions of, modifications of,
refinancings of, consolidations of and substitutions for the
note or credit agreement.
Related Documents. The words "RELATED DOCUMENTS" mean and
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include without limitation all promissory notes, credit
agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust,
and all other instruments, agreements and documents, whether
now or hereafter existing, executed in connection with the
Indebtedness.
BORROWER'S WAIVERS AND RESPONSIBILITIES. Except as otherwise
required under this Agreement or by applicable law, (a) Borrower
agrees that Lender need not tell Borrower about any action or
inaction Lender takes in connection with this Agreement; (b)
Borrower assumes the responsibility for being and keeping
informed about the Collateral; and (c) Borrower waives any
defenses that may arise because of any action or inaction of
Lender, including without limitation any failure of Lender to
realize upon the Collateral or any delay by Lender in realizing
upon the Collateral; and Borrower agrees to remain liable under
the Note no matter what action Lender takes or fails to take
under this Agreement.
OBLIGATIONS OF GRANTOR. Grantor warrants and covenants to Lender
as follows:
Perfection of Security Interest. Grantor agrees to execute
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such financing statements and to take whatever other actions
are requested by Lender to perfect and continue Lender's
security interest in the Collateral. Upon request of
Lender, Grantor will deliver to Lender any and all of the
documents evidencing or constituting the Collateral, and
Grantor will note Lender's interest upon any and all chattel
paper if not delivered to Lender for possession by Lender.
Grantor hereby appoints Lender as its irrevocable
attorney-in-fact for the purpose of executing any documents
necessary to perfect or to continue the security interest
granted in this Agreement. Lender may at any time, and
without further authorization from Grantor, file a carbon,
photographic or other reproduction of any financing
statement or of this Agreement for use as a financing
statement. Grantor will reimburse Lender for all expenses
for the perfection and the continuation of the perfection of
Lender's security interest in the Collateral. Grantor
promptly will notify Lender before any change in Grantor's
name including any change to the assumed business names of
Grantor. This is a continuing Security Agreement and will
continue in effect even though all or any part of the
Indebtedness is paid in full and even though for a period of
time Borrower may not be indebted to Lender.
No Violation. The execution and delivery of this Agreement
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will not violate any laws or agreement governing Grantor or
to which Grantor is a party, and its certificate or articles
of incorporation and bylaws or code of regulations do not
prohibit any term or condition of this Agreement.
Enforceability of Collateral. To the extent the Collateral
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consists of accounts, contract rights, chattel paper, or
general intangibles, the Collateral is enforceable in
accordance with its terms, is genuine, and complies with
applicable laws concerning form, content and manner of
preparation and execution, and all persons appearing to be
obliged on the Collateral have authority and capacity to
contract and are in fact obligated as they appear to be on
the Collateral. At the time any account becomes subject to
a security interest in favor of Lender, the account shall be
a good and valid account representing an undisputed, bona
fide indebtedness incurred by the account debtor, for
merchandise held subject to delivery instructions or
theretofore shipped or delivered pursuant to a contract of
sale, or for services theretofore performed by Grantor with
or for the account debtor; there shall be no setoffs or
counterclaims against any such account; and no agreement
under which any deductions or discounts may be claimed shall
have been made with the account debtor except those
disclosed to Lender in writing.
Location of the Collateral. Grantor, upon request of
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Lender, will deliver to Lender in form satisfactory to
Lender a schedule of real properties and Collateral
locations relating to Grantor's operations, including
without limitation the following: (a) all real property
owned or being purchased by Grantor; (b) all real property
being rented or leased by Grantor; (c) all storage
facilities owned, rented, leased, or being used by Grantor;
and (d) all other properties where Collateral is or may be
located. Except in the ordinary course of its business,
Grantor shall not remove the Collateral from its existing
locations without the prior written consent of Lender.
Removal of Collateral. Grantor shall keep the Collateral
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(or to the extent the Collateral consists of intangible
property such as accounts, the records concerning the
Collateral) at Grantor's address shown above, or at such
other locations as are acceptable to Lender. Except in the
ordinary course of its business, including the sales of
inventory, Grantor shall not remove the Collateral from its
existing locations without the prior written consent of
Lender. To the extent that the Collateral consists of
vehicles, or other titled property, Grantor shall not take
or permit any action which would require application for
certificates of title for the vehicles outside the State of
Ohio, without the prior written consent of Lender.
Transactions Involving Collateral. Other than as expressly
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provided in the Loan Agreement, except for inventory sold or
accounts collected in the ordinary course of Grantor's
business, Grantor shall not sell, offer to sell, or
otherwise transfer or dispose of the Collateral. While
Grantor is not in default under this Agreement, Grantor may
sell inventory, but only in the ordinary course of its
business and only to buyers who qualify as a buyer in the
ordinary course of business. A sale in the ordinary course
of Grantor's business does not include a transfer in partial
or total satisfaction of a debt or any bulk sale. Grantor
shall not pledge, mortgage, encumber or otherwise permit the
Collateral to be subject to any lien, security interest,
encumbrance, or charge, other than the security interest
provided for in this Agreement or under the Loan Agreement,
without the prior written consent of Lender. This includes
security interests even if junior in right to the security
interests granted under this Agreement. Unless waived by
Lender, all proceeds from any disposition of the Collateral
(for whatever reason) shall be held in trust for Lender and
shall not be commingled with any other funds; provided
however, this requirement shall not constitute consent by
Lender to any sale or other disposition. Upon receipt,
Grantor shall immediately deliver any such proceeds to
Lender.
Title. Grantor represents and warrants to Lender that,
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except as otherwise provided expressly in the Loan
Agreement, it holds good and marketable title to the
Collateral, free and clear of all liens and encumbrances
except for the lien granted pursuant to this Agreement. No
financing statement covering any of the Collateral is on
file in any public office other than those which reflect the
security interest created by this Agreement or to which
Lender has specifically consented. Grantor shall defend
Lender's rights in the Collateral against the claims and
demands of all other persons.
Collateral Schedules and Locations. As often as Lender
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shall require, and insofar as the Collateral consists of
accounts and general intangibles, Grantor shall deliver to
Lender schedules of such Collateral, including such
information as Lender may require, including without
limitation names and addresses of account debtors and agings
of accounts and general intangibles. Insofar as the
Collateral consists of inventory and equipment, Grantor
shall deliver to Lender, as often as Lender shall require,
such lists, descriptions, and designations of such
Collateral as Lender may require to identify the nature,
extent, and location of such Collateral. Such information
shall be submitted for Grantor and each of its subsidiaries
or related companies.
Maintenance and Inspection of Collateral. Grantor shall
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maintain all tangible Collateral in good condition and
repair. Grantor will not commit or permit damage to or
destruction of the Collateral or any part of the Collateral.
Lender and its designated representatives and agents shall
have the right at all reasonable times to examine, inspect,
and audit the Collateral wherever located. Subject to the
limitations set forth in the Loan Agreement, Grantor shall
immediately notify Lender of all cases involving the return,
rejection, repossession, loss or damage of or to any
Collateral; of any request for credit or adjustment or of
any other dispute arising with respect to the Collateral;
and generally of all happenings and events affecting the
Collateral or the value or the amount of the Collateral.
Taxes, Assessments and Liens. Grantor will pay when due all
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taxes, assessments and liens upon the Collateral, its use or
operation, upon this Agreement, upon any promissory note or
notes evidencing the Indebtedness, or upon any of the other
Related Documents. Grantor may withhold any such payment or
may elect to contest any lien if Grantor is in good faith
conducting an appropriate proceeding to contest the
obligation to pay and so long as Lender's interest in the
Collateral is not jeopardized in Lender's sole opinion. If
the Collateral is subjected to a lien which is not
discharged within fifteen (15) days, Grantor shall deposit
with Lender cash, a sufficient corporate surety bond or
other security satisfactory to Lender in an amount adequate
to provide for the discharge of the lien plus any interest,
costs, attorneys' fees or other charges that could accrue as
a result of foreclosure or sale of the Collateral. In any
contest Grantor shall defend itself and Lender and shall
satisfy any final adverse judgment before enforcement
against the Collateral. Grantor shall name Lender as an
additional obligee under any surety bond furnished in the
contest proceedings.
Compliance With Governmental Requirements. Grantor shall
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comply promptly with all laws, ordinances, rules and
regulations of all governmental authorities, now or
hereafter in effect, applicable to the ownership,
production, disposition, or use of the Collateral. Grantor
may contest in good faith any such law, ordinance or
regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Lender's interest
in the Collateral, in Lender's opinion, is not jeopardized.
Hazardous Substances. Grantor represents and warrants that
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the Collateral never has been, and never will be so long as
this Agreement remains a lien on the Collateral, used for
the generation, manufacture, storage, transportation,
treatment, disposal, release or threatened release of any
hazardous waste or substance, as those terms are defined in
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601,
et seq. ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499 ("XXXX"),
the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., the Resource Conservation and
Recovery Act, 49 U.S.C. Section 6901, et seq., or other
applicable state or Federal laws, rules, or regulations
adopted pursuant to any of the foregoing. The terms
"HAZARDOUS WASTE" and "HAZARDOUS SUBSTANCE" shall also
include, without limitation, petroleum and petroleum
by-products or any fraction thereof and asbestos. The
representations and warranties contained herein are based on
Grantor's due diligence in investigating the Collateral for
hazardous wastes and substances. Grantor hereby
(a) releases and waives any future claims against Lender for
indemnity or contribution in the event Grantor becomes
liable for cleanup or other costs under any such laws, and
(b) agrees to indemnify and hold harmless Lender against any
and all claims and losses resulting from a breach of this
provision of this Agreement. This obligation to indemnify
shall survive the payment of the Indebtedness and the
satisfaction of this Agreement.
Maintenance of Casualty Insurance. Grantor shall procure
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and maintain all risks insurance, including without
limitation fire, theft and liability coverage together with
such other insurance as Lender may require with respect to
the Collateral, in form, amounts, coverages and basis
reasonably acceptable to Lender and issued by a company or
companies reasonably acceptable to Lender. Grantor, upon
request of Lender, will deliver to Lender from time to time
the policies or certificates of insurance in form
satisfactory to Lender, including stipulations that coverage
will not be canceled or diminished without at least ten (10)
days' prior written notice to Lender and not including any
disclaimer of the insurer's liability for failure to give
such a notice. Each insurance policy also shall include an
endorsement providing that coverage in favor of Lender will
not be impaired in any way by any act, omission or default
of Grantor or any other person. In connection with all
policies covering assets in which Lender holds or is offered
a security interest, Grantor will provide Lender with such
loss payable or other endorsements as Lender may require.
If Grantor at any time fails to obtain or maintain any
insurance as required under this Agreement, Lender may (but
shall not be obligated to) obtain such insurance as Lender
deems appropriate, including if it so chooses "single
interest insurance," which will cover only Lender's interest
in the Collateral.
Application of Insurance Proceeds. Grantor shall promptly
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notify Lender of any loss or damage to the Collateral.
Lender may make proof of loss if Grantor fails to do so
within fifteen (15) days of the casualty. All proceeds of
any insurance on the Collateral, including accrued proceeds
thereon, shall be held by Lender as part of the Collateral.
If Lender consents to repair or replacement of the damaged
or destroyed Collateral, which consent shall not be
unreasonably withheld, Lender shall, upon satisfactory proof
of expenditure, pay or reimburse Grantor from the proceeds
for the reasonable cost of repair or restoration. If Lender
does not consent to repair or replacement of the Collateral,
Lender shall retain a sufficient amount of the proceeds to
pay all of the Indebtedness, and shall pay the balance to
Grantor. Any proceeds which have not been disbursed within
six (6) months after their receipt and which Grantor has not
committed to the repair or restoration of the Collateral
shall be used to prepay the Indebtedness.
Insurance Reports. Grantor, upon request of Lender, shall
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furnish to Lender reports on each existing policy of
insurance showing such information as Lender may reasonably
request including the following: (a) the name of the
insurer; (b) the risks insured; (c) the amount of the
policy; (d) the property insured; (e) the then current value
on the basis of which insurance has been obtained and the
manner of determining that value; and (f) the expiration
date of the policy. In addition, Grantor shall upon request
by Lender (however not more often than annually) have an
independent appraiser satisfactory to Lender determine, as
applicable, the cash value or replacement cost of the
Collateral.
GRANTOR'S RIGHT TO POSSESSION AND TO COLLECT ACCOUNTS. Until
default and except as otherwise provided below with respect to
accounts, Grantor may have possession of the tangible personal
property and beneficial use of all the Collateral and may use it
in any lawful manner not inconsistent with this Agreement or the
Related Documents, provided that Grantor's right to possession
and beneficial use shall not apply to any Collateral where
possession of the Collateral by Lender is required by law to
perfect Lender's security interest in such Collateral. Until
otherwise notified by Lender, Grantor may collect any of the
Collateral consisting of accounts. At any time and even though
no Event of Default exists, Lender may exercise its rights to
collect the accounts and to notify account debtors to make
payments directly to Lender for application to the Indebtedness.
If Lender at any time has possession of any Collateral, whether
before or after an Event of Default, Lender shall be deemed to
have exercised reasonable care in the custody and preservation of
the Collateral if Lender takes such action for that purpose as
Grantor shall request or as Lender, in Lender's sole discretion,
shall deem appropriate under the circumstances, but failure to
honor any request by Grantor shall not of itself be deemed to be
a failure to exercise reasonable care. Lender shall not be
required to take any steps necessary to preserve any rights in
the Collateral against prior parties, nor to protect, preserve or
maintain any security interest given to secure the Indebtedness.
EXPENDITURE BY LENDER. If not discharged or paid when due,
Lender may (but shall not be obligated to) discharge or pay any
amounts required to be discharged or paid by Grantor under this
Agreement, including without limitation all taxes, liens,
security interests, encumbrances, and other claims, at any time
levied or placed on the Collateral. Lender also may (but shall
not be obligated to) pay all costs for insuring, maintaining and
preserving the Collateral. All such expenditures incurred or
paid by Lender for such purposes will then bear interest at the
rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses
shall become a part of the Indebtedness and, at Lender's option,
will (a) be payable on demand, (b) be added to the balance of the
Note and be apportioned among and be payable with any installment
payments to become due during either (i) the term of any
applicable insurance policy or (ii) the remaining terms of the
Note, or (c) be treated as a balloon payment which will be due
and payable at the Note's maturity. This Agreement also will
secure payment of these amounts. Such right shall be in addition
to all other rights and remedies to which Lender may be entitled
upon the occurrence of an Event of Default.
EVENTS OF DEFAULT. Each of the following shall constitute an
Event of Default under this Agreement:
Default on Indebtedness. Failure of Borrower to make any
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payment when due on the Indebtedness as provided in the Note
and the Loan Agreement.
Other Defaults. Failure of Grantor or Borrower to comply
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with or to perform any other term, obligation, covenant or
condition contained in this Agreement or in the Loan
Agreement or any of the Related Documents.
Insolvency. The dissolution or termination of Grantor or
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Borrower's existence as a going business, the insolvency of
Grantor or Borrower, the appointment of a receiver for any
part of Grantor or Borrower's property, any assignment for
the benefit of creditors, any type of creditor workout, or
the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Grantor or Borrower.
Creditor or Forfeiture Proceedings. Commencement of
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foreclosure or forfeiture proceedings, whether by judicial
proceeding, self-help, repossession or any other method, by
any creditor of Grantor or Borrower or by any governmental
agency against the Collateral or any other collateral
securing the Indebtedness. This includes a garnishment of
any of Grantor or Borrower's deposit accounts with Lender.
However, this Event of Default shall not apply if there is a
good faith dispute by Grantor or Borrower as to the validity
or reasonableness of the claim which is the basis of the
creditor or forfeiture proceeding and if Grantor or Borrower
gives Lender written notice of the creditor or forfeiture
proceeding and deposits with Lender monies or a surety bond
for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an
adequate reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events
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occurs with respect to any Guarantor of any of the
Indebtedness or such Guarantor dies or becomes incompetent.
Lender, at its option, may, but shall not be required to,
permit the Guarantor's estate to assume unconditionally the
obligations arising under the guaranty in a manner
satisfactory to Lender, and, in doing so, cure the Event of
Default.
Insecurity. Lender, in good faith, deems itself insecure.
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RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs
under this Agreement, at any time thereafter, Lender shall have
all the rights of a secured party under the Ohio Uniform
Commercial Code and shall have all the rights and remedies
provided under the Loan Agreement and the Related Documents. In
addition and without limitation, Lender may exercise any one or
more of the following rights and remedies:
Assemble Collateral. Lender may require Grantor to deliver
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to Lender all or any portion of the Collateral and any and
all certificates of title and other documents relating to
the Collateral. Lender may require Grantor to assemble the
Collateral and make it available to Lender at a place to be
designated by Lender. Lender also shall have full power to
enter upon the property of Grantor to take possession of and
remove the Collateral. If the Collateral contains other
goods not covered by this Agreement at the time of
repossession, Grantor agrees Lender may take such other
goods, provided that Lender makes reasonable efforts to
return them to Grantor after repossession.
Sell the Collateral. Lender shall have full power to sell,
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lease, transfer, or otherwise deal with the Collateral or
proceeds thereof in its own name or that of Grantor. Lender
may sell the Collateral at public auction or private sale.
Unless the Collateral threatens to decline speedily in value
or is of a type customarily sold on a recognized market,
Lender will give Grantor reasonable notice of the time after
which any private sale or any other intended disposition of
the Collateral is to be made. The requirements of
reasonable notice shall be met if such notice is given at
least ten (10) days before the time of the sale or
disposition. All expenses relating to the disposition of
the Collateral, including without limitation the expenses of
retaking, holding, insuring, preparing for sale and selling
the Collateral, shall become a part of the Indebtedness
secured by this Agreement and shall be payable on demand,
with interest at the Note rate from date of expenditure
until repaid.
Appoint Receiver. To the extent permitted by applicable
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law, Lender shall have the following rights and remedies
regarding the appointment of a receiver: (a) Lender may
have a receiver appointed as a matter of right, (b) the
receiver may be an employee of Lender and may serve without
bond, and (c) all fees of the receiver and his or her
attorney shall become part of the Indebtedness secured by
this Agreement and shall be payable on demand, with interest
at the Note rate from date of expenditure until repaid.
Collect Revenues, Apply Accounts. Lender, either itself or
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through a receiver, may collect the payments, rents, income,
and revenues from the Collateral. Lender may at any time in
its discretion transfer any Collateral into its own name or
that of its nominee and receive the payments, rents, income,
and revenues therefrom and hold the same as security for the
Indebtedness or apply it to payment of the Indebtedness in
such order of preference as Lender may determine. Insofar
as the Collateral consists of accounts, general intangibles,
insurance policies, instruments, chattel paper, choses in
action, or similar property, Lender may demand, collect,
receipt for, settle, compromise, adjust, xxx for, foreclose,
or realize on the Collateral as Lender may determine,
whether or not Indebtedness or Collateral is then due. For
these purposes, Lender may, on behalf of and in the name of
Grantor, receive, open and dispose of mail addressed to
Grantor; change any address to which mail and payments are
to be sent; and endorse notes, checks, drafts, money orders,
documents of title, instruments and items pertaining to
payment, shipment, or storage of any Collateral. To
facilitate collection, Lender may notify account debtors and
obligors on any Collateral to make payments directly to
Lender.
Obtain Deficiency. If Lender chooses to sell any or all of
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the Collateral, Lender may obtain a judgment against
Borrower for any deficiency remaining on the Indebtedness
due to Lender after application of all amounts received from
the exercise of the rights provided in this Agreement.
Borrower shall be liable for a deficiency even if the
transaction described in this subsection is a sale of
accounts or chattel paper.
Other Rights and Remedies. Lender shall have all the rights
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and remedies of a secured creditor under the provisions of
the Uniform Commercial Code, as may be amended from time to
time. In addition, Lender shall have and may exercise any
or all other rights and remedies it may have available at
law, in equity, or otherwise.
Cumulative Remedies. All of Lender's rights and remedies,
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whether evidenced by this Agreement or the Related Documents
or by any other writing, shall be cumulative and may be
exercised singularly or concurrently. Election by Lender to
pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take
action to perform an obligation of Grantor or Borrower under
this Agreement, after Grantor or Borrower's failure to
perform, shall not affect Lender's right to declare and to
exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions
are a part of this Agreement.
Amendments. This Agreement, together with any Related
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Documents, constitutes the entire understanding and
agreement of the parties as to the matters set forth in this
Agreement. No alteration of or amendment to this Agreement
shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the
alteration or amendment.
Applicable Law. This Agreement has been delivered to Lender
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and accepted by Lender in the State of Ohio. If there is a
lawsuit, Grantor and Borrower agree upon Lender's request to
submit to the jurisdiction of the courts of Summit County,
State of Ohio. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
Attorneys' Fees; Expenses. Grantor and Borrower agree to
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pay upon demand all of Lender's costs and expenses,
including attorneys' fees and Lender's legal expenses,
incurred in connection with the enforcement of this
Agreement. Lender may pay someone else to help enforce this
Agreement, and Grantor and Borrower shall pay the costs and
expenses of such enforcement. Costs and expenses include
Lender's attorneys' fees and legal expenses whether or not
there is a lawsuit, including attorneys' fees and legal
expenses for bankruptcy proceedings (and including efforts
to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection
services. Grantor and Borrower also shall pay all court
costs and such additional fees as may be directed by the
court.
Caption Headings. Caption headings in this Agreement are
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for convenience purposes only and are not to be used to
interpret or define the provisions of this Agreement.
Multiple Parties; Corporate Authority. All obligations of
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Grantor and Borrower under this Agreement shall be joint and
several, and all references to Borrower shall mean each and
every Borrower, and all references to Grantor shall mean
each and every Grantor. This means that each of the persons
signing below as Borrower or Grantor is responsible for ALL
obligations in this Agreement.
Notices. All notices required to be given under this
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Agreement shall be given in writing and in the manner
provided in the Loan Agreement. To the extent permitted by
applicable law, if there is more than one Grantor, notice to
any Grantor or Borrower will constitute notice to all
Grantor and Borrowers. For notice purposes, Grantor or
Borrower agrees to keep Lender informed at all times of
Grantor or Borrower's current address(es).
Power of Attorney. Grantor hereby appoints Lender as its
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true and lawful attorney-in-fact, irrevocably, with full
power of substitution to do the following: (a) to demand,
collect, receive, receipt for, xxx and recover all sums of
money or other property which may now or hereafter become
due, owing or payable from the Collateral; (b) to execute,
sign and endorse any and all claims, instruments, receipts,
checks, drafts or warrants issued in payment for the
Collateral; (c) to settle or compromise any and all claims
arising under the Collateral, and, in the place and stead of
Grantor, to execute and deliver its release and settlement
for the claim; and (d) to file any claim or claims or to
take any action or institute or take part in any
proceedings, either in its own name or in the name of
Grantor, or otherwise, which in the discretion of Lender may
seem to be necessary or advisable. This power is given as
security for the Indebtedness, and the authority hereby
conferred is and shall be irrevocable and shall remain in
full force and effect until renounced by Lender.
Severability. If a court of competent jurisdiction finds
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any provision of this Agreement to be invalid or
unenforceable as to any person or circumstance, such finding
shall not render that provision invalid or unenforceable as
to any other persons or circumstances. If feasible, any
such offending provision shall be deemed to be modified to
be within the limits of enforceability or validity; however,
if the offending provision cannot be so modified, it shall
be stricken and all other provisions of this Agreement in
all other respects shall remain valid and enforceable.
Successor Interests. Subject to the limitations set forth
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above on transfer of the Collateral, this Agreement shall be
binding upon and inure to the benefit of the parties, their
successors and assigns.
Waiver. Lender shall not be deemed to have waived any
------
rights under this Agreement unless such waiver is given in
writing and signed by Lender. No delay or omission on the
part of Lender in exercising any right shall operate as a
waiver of such right or any other right. A waiver by Lender
of a provision of this Agreement shall not prejudice or
constitute a waiver of Lender's right otherwise to demand
strict compliance with that provision or any other provision
of this Agreement. No prior waiver by Lender, nor any
course of dealing between Lender and Grantor, shall
constitute a waiver of any of Lender's rights or of any of
Grantor's obligations as to any future transactions.
Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any
instance shall not constitute continuing consent to
subsequent instances where such consent is required and in
all cases such consent may be granted or withheld in the
sole discretion of Lender.
BORROWER AND GRANTOR ACKNOWLEDGE HAVING READ ALL THE
PROVISIONS OF THIS COMMERCIAL SECURITY AGREEMENT, AND BORROWER
AND GRANTOR AGREE TO ITS TERMS. THIS AGREEMENT IS DATED AS OF
FEBRUARY 28, 1997.
BORROWER AND GRANTOR:
Chempower, Inc.
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Chairman/President/CEO
LENDER:
First National Bank of Ohio
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx, Vice President
