A General Security Agreement was filed for the following entities:
Company Name State of
[COMPANY NAME] Incorporation Chief Executive Office [ADDRESS]
-------------- ---------- --------------------------------
Huntco Inc. Missouri 00000 X. Xxxxx Xxxxx Xxxxx, #000X, Xxxx & Xxxxxxx, XX 00000
Huntco Nevada, Inc. Nevada 0000 Xxxx Xxxxxxxx, Xxxxx Xxx Xxxxx, XX 00000
HSI Aviation, Inc. Missouri 00000 X. Xxxxx Xxxxx Xxxxx, #000X, Xxxx & Xxxxxxx, XX 00000
FORM OF
GENERAL SECURITY AGREEMENT
This General Security Agreement ("Agreement") dated April 15, 1999 is by
[Company Name] ("Debtor") in favor of Congress Financial Corporation
(Central), an Illinois corporation ("Secured Party").
W I T N E S S E T H
WHEREAS, Secured Party has entered or is about to enter into financing
arrangements with Huntco Steel, Inc., a Delaware corporation ("Huntco Steel")
and Midwest Products, Inc., a Missouri corporation ("Midwest", and together
with Huntco Steel, collectively, "Borrowers" and individually, a "Borrower")
pursuant to which Secured Party may make loans and provide other financial
accommodations to Borrowers; and
WHEREAS, Debtor has executed and delivered or is about to execute and deliver
to Secured Party guarantees in favor of Secured Party pursuant to which Debtor
absolutely and unconditionally guarantees to Secured Party the payment and
performance of all now existing and hereafter arising obligations, liabilities
and indebtedness of each Borrower to Secured Party; and
WHEREAS, in order to induce Secured Party to enter into such financing
arrangements, Debtor has agreed to grant to Secured Party certain collateral
security as set forth herein;
NOW, THEREFORE, in consideration of the mutual conditions and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS
All terms used herein which are defined in Article 1 or Article 9 of the
Uniform Commercial Code as from time to time in effect in the State of
Illinois shall have the meanings given therein unless otherwise defined in
this Agreement. All references to the plural herein shall also mean the
singular and to the singular shall also mean the plural unless the context
otherwise requires. All references to Debtor and Secured Party pursuant to
the definitions set forth in the recitals hereto, or to any other person
herein, shall include their respective successors and assigns and including as
to Secured Party, any successor agent acting for or on behalf of the
Creditors. All references to "Borrowers" herein shall mean each and both of
them, individually and collectively, and their respective successors and
assigns. The words "hereof", "herein", "hereunder", "this Agreement" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not any particular provision of this Agreement and as
this Agreement now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced. The word "including" when used in
this Agreement shall mean "including, without limitation". An Event of
Default shall exist or continue or be continuing until such Event of Default
is waived in accordance with Section 7.3 or is cured in a manner reasonably
satisfactory to Secured Party, if such Event of Default is capable of being
cured as reasonably determined by Secured Party. Any accounting term used
herein unless otherwise defined in this Agreement shall have the meanings
customarily given to such term in accordance with GAAP. For purposes of this
Agreement, the following terms shall have the respective meanings given to
them below:
1.1 "Accounts" shall mean all present and future rights of Debtor to payment
for goods sold or leased or for services rendered, which are not evidenced by
instruments or chattel paper, and whether or not earned by performance.
1.2 "Equipment" shall mean all of Debtor's now owned and hereafter acquired
equipment, machinery, computers and computer hardware and software (whether
owned or licensed), vehicles, tools, furniture, fixtures, all attachments,
accessions and property now or hereafter affixed thereto or used in connection
therewith, and substitutions and replacements thereof, wherever located.
1,3 "Event of Default" shall have the meaning set forth in Section 6.1
hereof.
1.4 "Financing Agreements" shall mean, collectively, the Loan Agreement, this
Agreement and all notes, guarantees, security agreements and other agreements,
documents and instruments now or at any time hereafter executed and/or
delivered by Debtor or any Huntco Company in connection with the Loan
Agreement, as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced.
1.5 "GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect from time to time as set forth in the opinions
and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board which are
applicable to the circumstances as of the date of determination consistently
applied.
1.6 "Huntco Companies" shall mean, collectively, the following, together with
their respective successors and assigns (sometimes being referred to herein
individually as a "Huntco Company"): Huntco Inc., a Missouri corporation,
Huntco Nevada, Inc., a Nevada corporation, Huntco Steel, Inc., a Delaware
corporation, Midwest Products, Inc., a Missouri corporation, and HSI
Aviation, Inc., a Missouri corporation.
1.7 "Information Certificate" shall mean the Information Certificate of
Debtor constituting part of Exhibit A to the Loan Agreement containing
material information with respect to Debtor, its business and assets provided
by or on behalf of Debtor to Secured Party in connection with the preparation
of this Agreement and the other Financing Agreements and the financing
arrangements referred to herein.
1.8 "Inventory" shall mean all of Debtor's now owned and hereafter existing
or acquired raw materials, work in process, finished goods and all other
inventory of whatsoever kind or nature, wherever located.
1.9 "Loan Agreement" shall mean the Loan and Security Agreement, dated of
even date herewith, by and among the Huntco Companies and Secured Party, as
the same now exists and may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced.
1.10 "Obligations" shall mean any and all obligations, liabilities and
indebtedness of every kind, nature and description owing by Debtor to Secured
Party, including principal, interest, charges, fees, costs and expenses,
however evidenced, whether as principal, surety, endorser, guarantor or
otherwise, arising under this Agreement or any of the other Financing
Agreements, whether now existing or hereafter arising, whether arising before,
during or after the initial or any renewal term of any of the Financing
Agreements or after the commencement of any case with respect to Debtor or any
Borrower under the United States Bankruptcy Code or any similar statute
(including the payment of interest and other amounts which would accrue and
become due but for the commencement of such case, whether or not such amounts
are allowed or allowable in whole or in part in such case), whether direct or
indirect, absolute or contingent, joint or several, due or not due, primary or
secondary, liquidated or unliquidated, or secured or unsecured.
1.11 "Person" or "person" shall mean any individual, sole proprietorship,
partnership, corporation (including any corporation which elects subchapter S
status under the Internal Revenue Code of 1986, as amended), limited liability
company, limited liability partnership, business trust, unincorporated
association, joint stock corporation, trust, joint venture or other entity or
any government or any agency or instrumentality or political subdivision
thereof.
1.12 "Records" shall mean all of Debtor's present and future books of account
of every kind or nature, purchase and sale agreements, invoices, ledger cards,
bills of lading and other shipping evidence, statements, correspondence,
memoranda, credit files and other data relating to the Collateral or any
account debtor, together with the tapes, disks, diskettes and other data and
software storage media and devices, file cabinets or containers in or on which
the foregoing are stored (including any rights of Debtor with respect to the
foregoing maintained with or by any other person).
SECTION 2. GRANT OF SECURITY INTEREST
2.1 To secure payment and performance of all Obligations, Debtor hereby
grants to Secured Party a continuing security interest in, a lien upon, and a
right of set off against, and hereby assigns to Secured Party as security, the
following property and interests in property of Debtor, whether now owned or
hereafter acquired or existing, and wherever located (collectively, the
"Collateral"):
(a) Accounts;
(b) all present and future contract rights, general intangibles (including
tax and duty refunds, registered and unregistered patents, trademarks, service
marks, copyrights, trade names, applications for the foregoing, trade secrets,
goodwill, processes, drawings, blueprints, customer lists, licenses, whether
as licensor or licensee, choses in action and other claims and existing and
future leasehold interests in equipment, real estate and fixtures), chattel
paper, documents, instruments, investment property, letters of credit,
bankers' acceptances and guaranties;
(c) all present and future monies, securities and other investment property,
credit balances, deposits, deposit accounts and other property of Debtor now
or hereafter held or received by or in transit to Secured Party or its
affiliates or at any other depository or other institution from or for the
account of Debtor whether for safekeeping, pledge, custody, transmission,
collection or otherwise, and all present and future liens, security interests,
rights, remedies, title and interest in, to and in respect of Accounts and
other Collateral, including rights and remedies under or relating to
guaranties, contracts of suretyship, letters of credit and credit and other
insurance related to the Collateral, rights of stoppage in transit, replevin,
repossession, reclamation and other rights and remedies of an unpaid vendor,
lienor or secured party, goods described in invoices, documents, contracts or
instruments with respect to, or otherwise representing or evidencing, Accounts
or other Collateral, including returned, repossessed and reclaimed goods, and
deposits by and property of account debtors or other persons securing the
obligations of account debtors;
(d) Inventory;
(e) Equipment;
(f) Records; and
(g) all products and proceeds of the foregoing, in any form, including
insurance proceeds and any claims against third parties for loss or damage to
or destruction of any or all of the foregoing.
2.2 Notwithstanding anything to the contrary contained in Section 2.1 above,
the types or items of Collateral described in such Section shall not include
any Equipment which is, or at the time of Debtor's acquisition thereof shall
be, subject to a purchase money mortgage or other purchase money lien or
security interest (including capitalized or finance leases) permitted under
Section 9.8 of the Loan Agreement if: (a) the valid grant of a security
interest or lien to Secured Party in such item of Equipment is prohibited by
the terms of the agreement between Debtor and the holder of such purchase
money mortgage or other purchase money lien or security interest or under
applicable law and such prohibition has not been or is not waived, or the
consent of the holder of the purchase money mortgage or other purchase money
lien or security interest has not been or is not otherwise obtained, or under
applicable law such prohibition cannot be waived and (b) the purchase money
mortgage or other purchase money lien or security interest on such item of
Equipment is or shall become valid and perfected.
2.3 Notwithstanding anything to the contrary set forth in Section 2.1 above,
the types or items of Collateral described in such Section shall not include
any rights or interests in any contract, lease, permit, license, charter or
license agreement covering real or personal property, as such, if under the
terms of such contract, lease, permit, license, charter or license agreement,
or applicable law with respect thereto, the valid grant of a security interest
or lien therein to Secured Party is prohibited and such prohibition has not
been or is not waived or the consent of the other party to such contract,
lease, permit, license, charter or license agreement has not been or is not
otherwise obtained; provided, that, the foregoing exclusion shall in no way be
construed to apply if any such prohibition is unenforceable under Section 9-
318 of the UCC or other applicable law or so as to limit, impair or otherwise
affect Secured Party's unconditional continuing security interests in and
liens upon any rights or interests of Debtor in or to monies due or to become
due under any such contract, lease, permit, license, charter or license
agreement (including any Accounts).
SECTION 3. COLLATERAL COVENANTS
3.1 Accounts Covenants.
(a) Secured Party shall have the right at any time or times, in Secured
Party's name or in the name of a nominee of Secured Party, to verify the
validity, amount or any other matter relating to any Account or other
Collateral, by mail, telephone, facsimile transmission or otherwise.
(b) Debtor shall deliver or cause to be delivered to Secured Party, with
appropriate endorsement and assignment, with full recourse to Debtor, all
chattel paper and instruments which Debtor now owns or may at any time acquire
prior to an Event of Default which is in the amount of more than $250,000 as
to any instrument issued to Debtor by an employee and $100,000 as to all
chattel paper and other instruments (so long as in the aggregate the amount of
such chattel paper and other instruments do not exceed $250,000) and after an
Event of Default (or prior to an Event of Default if the aggregate amount
hereof exceeds $250,000 as to all chattel paper and instruments other than
those issued by an employee (and if the aggregate amount of instruments issued
by employees exceeds $500,000) regardless of the amount thereof immediately
upon Debtor's receipt thereof, except as Secured Party may otherwise agree.
(c) Secured Party may, at any time or times that an Event of Default exists
or has occurred, notify any or all account debtors that the Accounts have
been assigned to Secured Party and that Secured Party has a security interest
therein and Secured Party may direct any or all accounts debtors to make
payment of Accounts directly to Secured Party, extend the time of payment of,
compromise, settle or adjust for cash, credit, return of merchandise or
otherwise, and upon any terms or conditions, any and all Accounts or other
obligations included in the Collateral and thereby discharge or release the
account debtor or any other party or parties in any way liable for payment
thereof without affecting any of the Obligations, demand, collect or enforce
payment of any Accounts or such other obligations, but without any duty to do
so, and Secured Party shall not be liable for its failure to collect or
enforce the payment thereof nor for the negligence of its agents or attorneys
with respect thereto and take whatever other action Secured Party may deem
necessary or desirable for the protection of its interests. At any time that
an Event of Default exists or has occurred, at Secured Party's request, all
invoices and statements sent to any account debtor shall state that the
Accounts and such other obligations have been assigned to Secured Party and
are payable directly and only to Secured Party and Debtor shall deliver to
Secured Party such originals of documents evidencing the sale and delivery of
goods or the performance of services giving rise to any Accounts as Secured
Party may require.
3.2 Inventory Covenants. With respect to the Inventory from and after the
date that the value of Inventory exceeds $500,000: Debtor shall at all times
maintain inventory records reasonably satisfactory to Secured Party, keeping
correct and accurate records; Debtor shall not remove any Inventory from the
locations set forth or permitted herein, without the prior written consent of
Secured Party, except for sales of Inventory in the ordinary course of
Debtor's business and except to move Inventory directly from one location set
forth or permitted herein to another such location; Debtor shall produce,
use, store and maintain the Inventory, with all reasonable care and caution
and in accordance with applicable standards of any insurance and in conformity
with applicable laws (including the requirements of the Federal Fair Labor
Standards Act of 1938, as amended and all rules, regulations and orders
related thereto); Debtor assumes all responsibility and liability arising
from or relating to the production, use, sale or other disposition of the
Inventory; Debtor shall not sell Inventory to any customer on approval, or
any other basis which entitles the customer to return or may obligate Debtor
to repurchase such Inventory; Debtor shall keep the Inventory in good and
marketable condition; and Debtor shall not, without prior written notice to
Secured Party, acquire or accept any Inventory on consignment or approval.
3.3 Equipment Covenants. With respect to the Equipment: Debtor shall keep
the Equipment in good order, repair, running and marketable condition
(ordinary wear and tear excepted); Debtor shall use the Equipment with all
reasonable care and caution and in accordance with applicable standards of any
insurance and in conformity with all applicable laws; the Equipment is and
shall be used in Debtor's business and not for personal, family, household or
farming use; Debtor shall not remove any Equipment from the locations set
forth or permitted herein, except to the extent necessary to have any
Equipment repaired or maintained in the ordinary course of the business of
Debtor or to move Equipment directly from one location set forth or permitted
herein to another such location and except for the movement of motor vehicles
used by or for the benefit of Debtor in the ordinary course of business; and
Debtor assumes all responsibility and liability arising from the use of the
Equipment.
3.4 Power of Attorney. Debtor hereby irrevocably designates and appoints
Secured Party (and all persons designated by Secured Party) as Debtor's true
and lawful attorney-in-fact, and authorizes Secured Party, in Debtor's or
Secured Party's name, to: at any time an Event of Default exists or has
occurred demand payment on Accounts or other proceeds of Inventory or other
Collateral, enforce payment of Accounts by legal proceedings or otherwise,
exercise all of Debtor's rights and remedies to collect any Account or other
Collateral, sell or assign any Account upon such terms, for such amount and
at such time or times as the Secured Party deems advisable, settle, adjust,
compromise, extend or renew an Account, discharge and release any Account,
prepare, file and sign Debtor's name on any proof of claim in bankruptcy or
other similar document against an account debtor, notify the post office
authorities to change the address for delivery of Debtor's mail to an address
designated by Secured Party, and open and dispose of all mail addressed to
Debtor, and do all other acts and things which are necessary, in Secured
Party's determination, to fulfill Debtor's obligations under this Agreement
and the other Financing Agreements and at any time to take control in any
manner of any item of payment or proceeds thereof constituting proceeds of
Collateral or otherwise received by Secured Party, have access to any lockbox
or postal box into which remittances from customers or other payment in
respect of Account or other Collateral are deposited, endorse Debtor's name
upon any items of payment or proceeds thereof constituting proceeds of
Collateral or otherwise received by Secured Party, and deposit the same in the
Secured Party's account for application to the Obligations, endorse Debtor's
name upon any chattel paper, document, instrument, invoice, or similar
document or agreement relating to any Account or any goods pertaining thereto
or any other Collateral, execute in Debtor's name and file any UCC financing
statements or amendments thereto, provided, that, in the event Secured Party
exercises its rights under this clause (v), Secured Party shall provide a copy
of such financing statement or amendment thereto to Debtor. Debtor hereby
releases Secured Party and its officers, employees and designees from any
liabilities arising from any act or acts under this power of attorney and in
furtherance thereof, whether of omission or commission, except as a result of
Secured Party's own gross negligence or willful misconduct as determined
pursuant to a final non-appealable order of a court of competent jurisdiction.
3.5 Right to Cure. Secured Party may, at its option, after notice to Debtor,
cure any default by Debtor under any agreement with a third party or pay or
bond on appeal any judgment entered against Debtor, discharge taxes, liens,
security interests or other encumbrances at any time levied on or existing
with respect to the Collateral and pay any amount, incur any expense or
perform any act which, in Secured Party's judgment, is necessary or
appropriate to preserve, protect, insure or maintain the Collateral and the
rights of Secured Party with respect thereto. Secured Party may add any
amounts so expended to the Obligations and charge any Borrower's account
therefor, such amounts to be repayable by Borrowers and Debtor on demand.
Secured Party shall be under no obligation to effect such cure, payment or
bonding and shall not, by doing so, be deemed to have assumed any obligation
or liability of Debtor. Any payment made or other action taken by Secured
Party under this Section shall be without prejudice to any right to assert an
Event of Default hereunder and to proceed accordingly.
3.6 Access to Premises. From time to time as requested by Secured Party,
Secured Party or its designee shall have complete access to all of Debtor's
premises during normal business hours and after not less than three (3) days
prior notice to Debtor prior to an Event of Default, or at any time and
without notice to Debtor if an Event of Default exists or has occurred, for
the purposes of inspecting, verifying and auditing the Collateral and all of
Debtor's books and records, including the Records, and Debtor shall promptly
furnish to Secured Party such copies of such books and records or extracts
therefrom as Secured Party may request, and Secured Party or its designee may
use during normal business hours such of Debtor's personnel, equipment,
supplies and premises as may be reasonably necessary for the foregoing and if
an Event of Default exists or has occurred for the collection of Accounts and
realization of other Collateral.
SECTION 4. REPRESENTATIONS AND WARRANTIES
Debtor hereby represents and warrants to Secured Party the following (which
shall survive the execution and delivery of this Agreement):
4.1 Corporate Existence, Power and Authority. Debtor is a corporation duly
organized and in good standing under the laws of its state of incorporation
and is duly qualified as a foreign corporation and in good standing in all
states or other jurisdictions where the nature and extent of the business
transacted by it or the ownership of assets makes such qualification
necessary, except for those jurisdictions in which the failure to so qualify
would not have a material adverse effect on Debtor's financial condition,
results of operation or business or the rights of Secured Party in or to any
of the Collateral. The execution, delivery and performance of this Agreement
and the transactions contemplated hereunder are all within Debtor's corporate
powers, have been duly authorized and are not in contravention of law or the
terms of Debtor's certificate of incorporation, by-laws, or other
organizational documentation, or any indenture, agreement or undertaking to
which Debtor is a party or by which Debtor or its property are bound. This
Agreement and the other Financing Agreements constitute legal, valid and
binding obligations of Debtor enforceable in accordance with their respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
4.2 Chief Executive Office; Collateral Locations. The chief executive office
of Debtor and Debtor's Records concerning Accounts are located only at the
address set forth below and its only other places of business and the only
other locations of Collateral, if any, are the addresses set forth in the
Information Certificate, subject to the right of Debtor to establish new
locations in accordance with Section 5.1 below.
4.3 Priority of Liens; Title to Properties. The security interests and liens
granted to Secured Party under this Agreement and the other Financing
Agreements constitute valid and perfected first priority liens and security
interests in and upon the Collateral subject only to the liens indicated on
Schedule 8.4 of the Loan Agreement and the other liens permitted under Section
5.4 hereof. Debtor has good and marketable title to all of its properties and
assets subject to no liens, mortgages, pledges, security interests,
encumbrances or charges of any kind, except those granted to Secured Party and
such others as are specifically listed in the Loan Agreement or permitted
under the Loan Agreement.
4.4 Accuracy and Completeness of Information. All information furnished by
or on behalf of Debtor in writing to Secured Party in connection with this
Agreement or any of the other Financing Agreements or any transaction
contemplated hereby or thereby, including all information on the Information
Certificate is true and correct in all material respects on the date as of
which such information is dated or certified and does not omit any material
fact necessary in order to make such information not misleading. No event or
circumstance has occurred which has had or could reasonably be expected to
have a material adverse affect on the business, assets or prospects of Debtor,
which has not been fully and accurately disclosed to Secured Party in writing.
4.5 Survival of Warranties; Cumulative. All representations and warranties
contained in this Agreement or any of the other Financing Agreements shall
survive the execution and delivery of this Agreement and shall be deemed to
have been made again to Secured Party on the date of each additional borrowing
or other credit accommodation under the Loan Agreement, except to the extent
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
accurate on and as of such earlier date), and shall be conclusively presumed
to have been relied on by Secured Party regardless of any investigation made
or information possessed by Secured Party. The representations and warranties
set forth herein shall be cumulative and in addition to any other
representations or warranties which Debtor shall now or hereafter give, or
cause to be given, to Secured Party.
SECTION 5. AFFIRMATIVE AND NEGATIVE COVENANTS
5.1 New Collateral Locations. Debtor may open any new location within the
continental United States provided Debtor gives Secured Party thirty (30)
days prior written notice of the intended opening of any such new location and
executes and delivers, or causes to be executed and delivered, to Secured
Party such agreements, documents, and instruments as Secured Party may deem
reasonably necessary or desirable to protect its interests in the Collateral
at such location, including UCC financing statements.
5.2 Insurance. Debtor shall, at all times, maintain with financially sound
and reputable insurers insurance with respect to the Collateral against loss
or damage and all other insurance of the kinds and in the amounts customarily
insured against or carried by corporations of established reputation engaged
in the same or similar businesses and similarly situated. Said policies of
insurance shall be reasonably satisfactory to Secured Party as to form, amount
and insurer. Debtor shall furnish certificates, policies or endorsements to
Secured Party as Secured Party shall require as proof of such insurance, and,
if Debtor fails to do so, Secured Party is authorized, but not required, to
obtain such insurance at the expense of Debtor. All policies shall provide
for at least thirty (30) days prior written notice to Secured Party of any
cancellation or reduction of coverage and that Secured Party may act as
attorney for Debtor in obtaining, and at any time an Event of Default exists
or has occurred and is continuing, adjusting, settling, amending and canceling
such insurance. Debtor shall cause Secured Party to be named as a loss payee
and an additional insured (but without any liability for any premiums) under
such insurance policies and Debtor shall obtain non-contributory lender's loss
payable endorsements to all insurance policies in form and substance
satisfactory to Secured Party. Such lender's loss payable endorsements shall
specify that the proceeds of such insurance shall be payable to Secured Party
as its interests may appear and further specify that Secured Party shall be
paid regardless of any act or omission by Debtor or any of its affiliates. At
its option, Secured Party may apply any insurance proceeds received by Secured
Party at any time to the cost of repairs or replacement of Collateral and/or
to payment of the Obligations, whether or not then due, in any order and in
such manner as Secured Party may determine or hold such proceeds as cash
collateral for the Obligations.
5.3 Costs and Expenses. Debtor shall pay to Secured Party on demand all
costs, expenses, filing fees and taxes paid or payable in connection with the
preparation, negotiation, execution, delivery, recording, administration,
collection, liquidation, enforcement and defense of the Obligations, Secured
Party's rights in the Collateral, this Agreement, the other Financing
Agreements and all other documents related hereto or thereto, including any
amendments, supplements or consents which may hereafter be contemplated
(whether or not executed) or entered into in respect hereof and thereof,
including: all costs and expenses of filing or recording (including Uniform
Commercial Code financing statement filing taxes and fees, documentary taxes,
intangibles taxes and mortgage recording taxes and fees, if applicable); all
insurance premiums, appraisal fees and search fees; costs and expenses of
preserving and protecting the Collateral; costs and expenses paid or incurred
in connection with obtaining payment of the Obligations, enforcing the
security interests and liens of Secured Party, selling or otherwise realizing
upon the Collateral, and otherwise enforcing the provisions of this Agreement
and the other Financing Agreements or defending any claims made or threatened
against Secured Party arising out of the transactions contemplated hereby and
thereby (including preparations for and consultations concerning any such
matters); and the reasonable fees and disbursements of counsel (including
legal assistants) to Secured Party in connection with any of the foregoing.
5.4 Further Assurances. At the request of Secured Party at any time and from
time to time, Debtor shall, at its expense, at any time or times duly execute
and deliver, or cause to be duly executed and delivered, such further
agreements, documents and instruments, and do or cause to be done such further
acts as may be necessary or proper to evidence, perfect, maintain and enforce
the security interests and the priority thereof in the Collateral and to
otherwise effectuate the provisions or purposes of this Agreement or any of
the other Financing Agreements. Where permitted by law, Debtor hereby
authorizes Secured Party to execute and file one or more UCC financing
statements signed only by Secured Party.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES
6.1 Events of Default. The occurrence or existence of any "Event of Default"
as defined in and under the Loan Agreement is referred to herein individually
as an "Event of Default", and collectively as "Events of Default".
6.2 Remedies.
(a) At any time an Event of Default exists or has occurred and is continuing,
Secured Party shall have all rights and remedies provided in this Agreement,
the other Financing Agreements, the Uniform Commercial Code and other
applicable law, all of which rights and remedies may be exercised without
notice to or consent by Debtor, except as such notice or consent is expressly
provided for hereunder or required by applicable law. All rights, remedies
and powers granted to Secured Party hereunder, under any of the other
Financing Agreements, the Uniform Commercial Code or other applicable law, are
cumulative, not exclusive and enforceable, in Secured Party's discretion,
alternatively, successively, or concurrently on any one or more occasions, and
shall include, without limitation, the right to apply to a court of equity for
an injunction to restrain a breach or threatened breach by Debtor of this
Agreement or any of the other Financing Agreements. Secured Party may, at any
time or times, proceed directly against Debtor to collect the Obligations
without prior recourse to the Collateral.
(b) Without limiting the foregoing, at any time an Event of Default exists or
has occurred and is continuing, Secured Party may, in its discretion and
without limitation, with or without judicial process or the aid or assistance
of others, enter upon any premises on or in which any of the Collateral may be
located and take possession of the Collateral or complete processing,
manufacturing and repair of all or any portion of the Collateral, require
Debtor, at Debtor's expense, to assemble and make available to Secured Party
any part or all of the Collateral at any place and time designated by Secured
Party, collect, foreclose, receive, appropriate, setoff and realize upon any
and all Collateral, remove any or all of the Collateral from any premises on
or in which the same may be located for the purpose of effecting the sale,
foreclosure or other disposition thereof or for any other purpose, sell,
lease, transfer, assign, deliver or otherwise dispose of any and all
Collateral (including entering into contracts with respect thereto, public or
private sales at any exchange, broker's board, at any office of Secured Party
or elsewhere) at such prices or terms as Secured Party may deem reasonable,
for cash, upon credit or for future delivery, with Secured Party having the
right to purchase the whole or any part of the Collateral at any such public
sale, all of the foregoing being free from any right or equity of redemption
of Debtor, which right or equity of redemption is hereby expressly waived and
released by Debtor. If any of the Collateral is sold or leased by Secured
Party upon credit terms or for future delivery, the Obligations shall not be
reduced as a result thereof until payment therefor is finally collected by
Secured Party. If notice of disposition of Collateral is required by law,
five (5) days prior notice by Secured Party to Debtor designating the time and
place of any public sale or the time after which any private sale or other
intended disposition of Collateral is to be made, shall be deemed to be
reasonable notice thereof and Debtor waives any other notice. In the event
Secured Party institutes an action to recover any Collateral or seeks recovery
of any Collateral by way of prejudgment remedy, Debtor waives the posting of
any bond which might otherwise be required.
(c) Secured Party may apply the cash proceeds of Collateral actually received
by Secured Party from any sale, lease, foreclosure or other disposition of the
Collateral to payment of the Obligations, in whole or in part and in such
order as Secured Party may elect, whether or not then due. Debtor shall
remain liable to Secured Party for the payment of any deficiency with interest
at the highest rate provided for in the Loan Agreement and all costs and
expenses of collection or enforcement, including attorneys' fees and legal
expenses.
SECTION 7. JURY TRIAL WAIVER; OTHER WAIVERS
AND CONSENTS; GOVERNING LAW
7.1 Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver.
(a) The validity, interpretation and enforcement of this Agreement and any
dispute arising out of the relationship between the parties hereto, whether in
contract, tort, equity or otherwise, shall be governed by the internal laws of
the State of Illinois (without giving effect to principles of conflicts of
law).
(b) Debtor irrevocably consents and submits to the non-exclusive jurisdiction
of the Circuit Court of Xxxx County, Illinois and the United States District
Court for the Northern District of Illinois and waives any objection based on
venue or forum non conveniens with respect to any action instituted therein
arising under this Agreement or in any way connected or related or incidental
to the dealings of Debtor and Secured Party in respect of this Agreement, in
each case whether now existing or hereafter arising, and whether in contract,
tort, equity or otherwise, and agrees that any dispute with respect to any
such matters shall be heard only in the courts described above to the extent
such courts have and accept jurisdiction thereof (except that Secured Party
shall have the right to bring any action or proceeding against Debtor or its
property in the courts of any other jurisdiction which Secured Party deems
necessary or appropriate in order to realize on the Collateral or to otherwise
enforce its rights against Debtor or its property).
(c) Debtor hereby waives personal service of any and all process upon it and
consents that all such service of process may be made by certified mail
(return receipt requested) directed to its address set forth on the signature
pages hereof and service so made shall be deemed to be completed five (5) days
after the same shall have been so deposited in the U.S. mails unless Secured
Party has taken control of all of the mail of Debtor, or, at Secured Party's
option, by service upon Debtor in any other manner provided under the rules of
any such courts. Within thirty (30) days after such service, Debtor shall
appear in answer to such process, failing which Debtor shall be deemed in
default and judgment may be entered by Secured Party against Debtor for the
amount of the claim and other relief requested.
(d) DEBTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER
FINANCING AGREEMENTS OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF DEBTOR AND SECURED PARTY IN RESPECT OF THIS AGREEMENT OR ANY
OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR
THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN
CONTRACT, TORT, EQUITY OR OTHERWISE. DEBTOR HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT DEBTOR OR SECURED PARTY MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF DEBTOR AND SECURED PARTY TO THE WAIVER OF THEIR RIGHT TO TRIAL
BY JURY.
(e) Secured Party shall not have any liability to Debtor (whether in tort,
contract, equity or otherwise) for losses suffered by Debtor in connection
with, arising out of, or in any way related to the transactions or
relationships contemplated by this Agreement, or any act, omission or event
occurring in connection herewith, unless it is determined by a final and non-
appealable judgment or court order binding on Secured Party that the losses
were the result of acts or omissions constituting gross negligence or willful
misconduct. In any such litigation, Secured Party shall be entitled to the
benefit of the rebuttable presumption that it acted in good faith and with the
exercise of ordinary care in the performance by it of the terms of this
Agreement and the other Financing Agreements.
7.2 Waiver of Notices. Debtor hereby expressly waives demand, presentment,
protest and notice of protest and notice of dishonor with respect to any and
all instruments and commercial paper, included in or evidencing any of the
Obligations or the Collateral, and any and all other demands and notices of
any kind or nature whatsoever with respect to the Obligations, the Collateral
and this Agreement, except such as are expressly provided for herein. No
notice to or demand on Debtor which Secured Party may elect to give shall
entitle Debtor to any other or further notice or demand in the same, similar
or other circumstances.
7.3 Amendments and Waivers. Neither this Agreement nor any provision hereof
shall be amended, modified, waived or discharged orally or by course of
conduct, but only by a written agreement signed by an authorized officer of
Secured Party, and as to amendments, as also signed by an authorized officer
of Debtor. Secured Party shall not, by any act, delay, omission or otherwise
be deemed to have expressly or impliedly waived any of its rights, powers
and/or remedies unless such waiver shall be in writing and signed by an
authorized officer of Secured Party. Any such waiver shall be enforceable
only to the extent specifically set forth therein. A waiver by Secured Party
of any right, power and/or remedy on any one occasion shall not be construed
as a bar to or waiver of any such right, power and/or remedy which Secured
Party would otherwise have on any future occasion, whether similar in kind or
otherwise.
7.4 Waiver of Counterclaims. Debtor waives all rights to interpose any
claims, deductions, setoffs or counterclaims of any nature (other then
compulsory counterclaims) in any action or proceeding with respect to this
Agreement, the Obligations, the Collateral or any matter arising therefrom or
relating hereto or thereto.
7.5 Indemnification. Debtor shall indemnify and hold Secured Party and its
directors, agents, employees and counsel, harmless from and against any and
all losses, claims, damages, liabilities, costs or expenses imposed on,
incurred by or asserted against any of them in connection with any litigation,
investigation, claim or proceeding commenced or threatened related to the
negotiation, preparation, execution, delivery, enforcement, performance or
administration of this Agreement, or any undertaking or proceeding related to
any of the transactions contemplated hereby or any act, omission, event or
transaction related or attendant thereto, including amounts paid in
settlement, court costs, and the fees and expenses of counsel. To the extent
that the undertaking to indemnify, pay and hold harmless set forth in this
Section may be unenforceable because it violates any law or public policy,
Debtor shall pay the maximum portion which it is permitted to pay under
applicable law to Secured Party in satisfaction of indemnified matters under
this Section. The foregoing indemnity shall survive the payment of the
Obligations, the termination of this Agreement and the termination or non-
renewal of the Loan Agreement.
SECTION 8. MISCELLANEOUS
8.1 Notices. All notices, requests and demands hereunder shall be in writing
and (a) made to Secured Party at its address at 000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xx. Xxxxxxx X. Xxxxx and to Debtor at its
chief executive office set forth below with a copy to Huntco Inc. at its
address at 00000 Xxxxx Xxxxx Xxxxx Xxxxx, Xxxxx 000X, Xxxx and Country,
Missouri 63017, or to such other address as either party may designate by
written notice to the other in accordance with this provision, and (b) deemed
to have been given or made: if delivered in person, immediately upon delivery;
if by telex, telegram or facsimile transmission, immediately upon sending and
upon confirmation of receipt; if by nationally recognized overnight courier
service with instructions to deliver the next business day, one (1) business
day after sending; and if by certified mail, return receipt requested, five
(5) days after mailing.
8.2 Partial Invalidity. If any provision of this Agreement is held to be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Agreement as a whole, but this Agreement shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
8.3 Successors. This Agreement, the other Financing Agreements and any other
document referred to herein or therein shall be binding upon Debtor and its
successors and assigns and inure to the benefit of and be enforceable by
Secured Party and its successors and assigns, except that Debtor may not
assign its rights under this Agreement, the other Financing Agreements and any
other document referred to herein or therein without the prior written consent
of Secured Party.
8.4 Entire Agreement. This Agreement, the other Financing Agreements, any
supplements hereto or thereto, and any instruments or documents delivered or
to be delivered in connection herewith or therewith represents the entire
agreement and understanding concerning the subject matter hereof and thereof
between the parties hereto, and supersede all other prior agreements,
understandings, negotiations and discussions, representations, warranties,
commitments, proposals, offers and contracts concerning the subject matter
hereof, whether oral or written. In the event of any inconsistency between
the terms of this Agreement and any schedule or exhibit hereto, the terms of
this Agreement shall govern.
IN WITNESS WHEREOF, Debtor has caused these presents to be duly executed as of
the day and year first above written.
Debtor
[COMPANY NAME]
By:
Title:
CHIEF EXECUTIVE OFFICE:
[ADDRESS]
