Exhibit 10.1
STERLING NATIONAL BANK
GENERAL LOAN AND SECURITY AGREEMENT
In consideration of financial accommodations heretofore extended or to be
extended or continued to undersigned or to others at the request of, or upon the
guarantee of undersigned, by STERLING NATIONAL BANK ("Bank") and/or any of its
affiliates, undersigned hereby agrees as follows:
1. As security for the full and prompt payment of any and all Liabilities
(as hereinafter defined), undersigned hereby sells, assigns, pledges, transfers
and sets over to Bank and grants Bank a continuing first and prior security
interest in all Security (as hereinafter defined). Said grant is made for the
benefit of Bank, its affiliates and/or any others having a participation or
other interest in any of the Liabilities, in such proportions as Bank shall in
its sole discretion determine.
2. The term "Liabilities" as used herein shall include all liabilities and
obligations of any kind of undersigned (or any partnership, limited liability
partnership, limited liability company, or other group or entity of which
undersigned is a member) to (a) Bank, (b) any affiliates of Bank and (c) any
other person if Bank or its affiliates has a participation, intercreditor
agreement or other interest in such liabilities or obligations or in the
Security therefor, and all whether for the account of Bank or its affiliates or
as agent for others, whether acquired directly or indirectly by Bank or its
affiliates from undersigned or others, absolute or contingent, joint or several,
secured or unsecured, liquidated or unliquidated, due or not due, matured or not
matured, contractual or tortious, now existing or hereafter arising or created,
and whether incurred by undersigned as obligor, principal, surety, endorser,
guarantor or otherwise, and including without limitation all costs and expenses,
including attorneys' fees, incurred by Bank or its affiliates in connection with
any such liabilities or obligations or any Security therefor and including all
costs and expenses of Bank or its affiliates in complying with or opposing or
seeking to limit any restraining notices, levies, subpoenas, or information or
discovery requests served upon Bank or its affiliates, all in accordance with
customary charges of Bank or its affiliates therefor, including, but not limited
to, copying, research and staff costs, including overtime costs, if any,
transportation, legal fees and expenses.
3. The term "Obligor" as used herein shall include undersigned and, in
addition, any maker, drawer, acceptor, endorser, guarantor, hypothecator,
surety, accommodation party, or any other party directly or contingently liable
for any of the Liabilities, and the term "Bank" as used herein shall be deemed
to include Bank and its affiliates, whether or not so designated, unless the
context of such reference is expressly to the contrary.
4. The term "Security" as used herein shall include all now owned and
hereafter arising, created or acquired property and assets of undersigned of any
kind or nature, wherever located, and whether or not in the possession of Bank
or placed in any safe deposit box leased by Bank to undersigned or under the
control of or in transit to Bank or any of its affiliates, nominees
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or agents for any purpose, and whether or not accepted for the purposes for
which delivered including, without limitation: the balance of every deposit
account of undersigned with Bank or any of Bank's nominees or agents and all
other obligations of Bank or any of its nominees or agents to undersigned; and
all other personal property of undersigned, including, without limitation, all
securities, Book Entry Securities (as hereinafter defined), notes, instruments,
documents, chattel paper, choses in action, leases, repurchase agreements,
money, accounts, contract rights and all other general intangibles, including,
without limitation, all customer lists, credit files, supplier lists, catalogs,
formulations, manufacturing procedures, quality control procedures, product
specifications, sales materials, records and service marks, brand names,
patents, patent rights, patent applications, franchises, copyrights, licenses,
permits, processes, trademarks, trademarks rights, trade names, trade name
rights, trade styles and trade secrets, together with the goodwill of the
business represented thereby, and all blueprints, bids, proposals, claims,
rights, credits and adjustments and interest of undersigned in any goods thereby
represented; and all claims for money due, including, without limitation, tax
refunds from any federal, state or municipal government, or agency thereof, or
any taxing authority; and all goods, including, without limitation, all consumer
goods, machinery and equipment, furniture, furnishings and fixtures, farm
products and inventory (including, without limitations, all goods intended for
sale or lease, or to be furnished under contracts of service, work in process
and raw materials, and all materials and supplies of every nature used or usable
in connection with packing, shipping, advertising, selling, leasing or
furnishing of such goods), all substitutions, accretions, component parts,
replacement parts, replacements thereof and additions thereto, as well as all
accessories, motors, engines, auxiliary parts used in connection with or
attached thereto and any packing material in which such goods may be contained;
and all renewals and substitutions for, all accessions to, all accessories on,
all replacements for, all additions to, all income, dividends and other
distributions from or on, all rights, privileges, options, and profits from or
on or relating to or declared or granted in connection with, and all proceeds
and products of all of the foregoing in any form whatsoever, including, without
limitation, all payments and proceeds of insurance thereon, and all books and
records, including, without limitation, computer programs and data files, discs,
diskettes, drives, print-outs and other computer materials and records of
Obligor pertaining to all of the foregoing. Bank does not assume nor shall it
become liable for the performance of any obligation or duty with respect to any
Security.
5. The right is granted to Bank in its discretion, to file this General
Loan and Security Agreement or a carbon, photographic or other reproduction
thereof and/or one or more financing statements, (with, or to the extent
permitted by law, without the signature of undersigned) under the Uniform
Commercial Code naming undersigned as debtor and Bank as secured party and
indicating therein the types or describing the items of Security herein
specified. Undersigned will execute, file and record any notices, affidavits or
other documents and take all such other actions as Bank may deem appropriate to
protect or perfect its security interest in the Security or to otherwise
accomplish the purposes of this agreement. Undersigned hereby agrees to pay on
demand, and/or authorizes Bank to charge its account with the cost of, any and
all filing, recording and other fees and expenses which Bank deems appropriate
in order to protect or perfect its security interest in the Security or to
otherwise accomplish the purposes of this agreement, including without
limitation the cost of all reports and searches of public records as Bank in its
sole discretion shall require. Undersigned will promptly notify Bank of the
imposition at any time of any lien or encumbrance upon any of the Security.
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Notwithstanding the foregoing, undersigned represents, warrants and covenants
that all of the Security now existing or hereafter created, arising or acquired
is and will be owned by undersigned free and clear of all security interest,
liens and encumbrances of any kind, except for the liens and security interests
herein granted to Bank. Undersigned shall promptly pay when due all taxes and
transportation, storage and warehousing charges affecting or arising out of the
Security. Undersigned will defend the Security against all claims and demands of
all persons at any time claiming the same or any interest therein adverse to
Bank.
Notwithstanding the foregoing, Bank shall have no obligation to comply
with any recording, re-recording, filing, re-filing, or other legal requirements
necessary to establish or maintain the validity, priority or enforceability of,
or Bank's right in or to, the Security or any part thereof.
6. The right is granted to Bank, in its discretion, at any time, (a) to
transfer to or register in its name or any of its nominees any of the Security,
and whether or not so transferred or registered, to receive the income,
interest, dividends and profits thereon, including stock dividends and
subscription rights, and to hold the same as a part of the Security and/or apply
the same as hereinafter provided; (b) to notify any third party (including,
without limitation, any account debtor, insurance company or bailee) as to
Bank's security interest in the Security; (c) to direct any such third party (or
to require undersigned) to make any payment on or with respect to any of the
Security to Bank (regardless of whether an Event of Default (as hereinafter
defined) has occurred); (d) to exchange any of the Security for other property
upon any reorganization, recapitalization, or other readjustment and in
connection therewith to deposit any of the Security with any committee or
depository upon such terms as Bank may determine; (e) in any bankruptcy or
similar proceeding to file a proof of claim for the full amount of the Security
and to vote such claim for or against any arrangement or with respect to any
other matter; (f) in its own name or in the name of undersigned or any other
appropriate person. to demand, sue for, collect or receive any money or property
at any time payable or receivable on account of or in exchange for, or make any
compromise or settlement it may deem desirable with respect to, any of the
Security; (g) to extend the time of payment, arrange for payment in
installments, or otherwise modify the terms of, or release, any of the Security;
(h) to contest, pay and/or discharge all liens, encumbrances, taxes or
assessments on, or claims, actions or demands against, any of the Security and
to take all actions and proceedings in its own name or in the name of
undersigned or any other appropriate person in order to remove or contest such
liens, encumbrances, taxes, assessments, claims, actions or demands; or to
refrain from doing any of the foregoing, all without affecting the Liabilities
and the Security and without notice or liability to or the consent of
undersigned except to account for property actually received by Bank.
Undersigned hereby irrevocably appoints Bank its attorney-in-fact, with
authority to receive, open and dispose of all mail addressed to undersigned and
to notify the Post Office or other private carrier authorities to change the
address for delivery of mail addressed to undersigned to such address as Bank
may designate; to endorse the name of undersigned on any instruments that may
come into Bank's possession; to sign the name of undersigned on any notices to
account debtors of undersigned and requests for verification of accounts; to
sign the name of undersigned on any assignment or other instruments of
conveyance or transfer of any of the Security; and to take all such other
actions as Bank may deem appropriate to carry out and enforce this agreement and
to exercise Bank's rights hereunder. Bank shall have no duty to collect income
or principal, or to send notices, perform services or take any action of any
kind respecting the management of
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any Security. Bank shall not be obligated to exercise any authority or right
granted to it hereunder and shall not be liable for any action taken or omitted
or the manner of taking any action, except for its willful misconduct, and in no
event for consequential damages.
7. Undersigned will pay to Bank all costs and expenses incurred and sums
paid by Bank (including without limitation attorneys' fees, insurance premiums
and sales commissions) in connection with the exercise of any right or remedy
given Bank under this agreement. All such amounts shall be included in the
definition of Liabilities (and therefore secured by the Security) and shall be
payable on demand.
8. At any time and from time to time, upon demand by Bank, undersigned
will (a) deliver to Bank, endorsed and/or accompanied by instruments of
assignment and transfer, in such form and containing such terms as Bank may
request, any and all instruments, documents and/or chattel paper constituting
part of the Security, as Bank may specify in its demand; (b) mark all Security
and all books and records relating thereto in such manner as Bank may require;
and (c) permit representatives of Bank at any time to inspect the Security and
to inspect, copy and make abstracts from any of undersigned's books and records
and to answer promptly all of the Bank's written or oral inquiries with respect
thereto. If undersigned, as registered holder of any of the Security, shall
receive any stock certificate, option or right, whether as an addition to, or in
substitution or exchange for, any Security, or otherwise, undersigned agrees to
accept the same as Bank's agent and to hold the same in trust for Bank, and to
forthwith deliver the same to Bank in the exact form received, with
undersigned's endorsement thereof if requested by Bank, to be held by Bank as
part of the Security. Undersigned assigns to Bank all of undersigned's right
(but none of its obligations) in, to and under all collateral, guarantees,
subordinations and other rights and benefits now or hereafter received by
undersigned with respect to the Security and agrees to deliver to Bank, upon
demand, all agreements, instruments and/or documents evidencing same, endorsed
and/or accompanied by instruments of assignment and transfer, in such form and
containing such terms as Bank may request.
9. Upon demand from Bank at any time that any of the Liabilities are
outstanding or there is any agreement between Bank and undersigned under which
Liabilities may be incurred, undersigned will assign and transfer to Bank and
grant to Bank a security interest in additional Security of a value and
character satisfactory to Bank or make such payment on account of the
Liabilities as Bank may require.
10. Upon the occurrence of an Event of Default (as hereinafter defined),
(a) any or all of the Liabilities shall, at the option of Bank and
notwithstanding any time or credit allowed by any instrument evidencing the
Liabilities, be immediately due and payable without notice, demand or
presentment; (b) Bank may, in its discretion, take possession of the Security
and, for that purpose, may enter, with the assistance of any persons, any
premises where the Security or any part thereof may be located, and retain
possession of the Security at such premises (and take such steps as it deems
appropriate to restrict access to such premises or otherwise safeguard the
Security) or remove the same therefrom; (c) undersigned shall, at the request of
Bank, assemble the Security at such places as Bank may designate and cooperate
in all other respects with Bank in the exercise of its rights hereunder; (d)
Bank may vote any shares of stock or other securities and exercise all or any
powers with respect thereto with the same force and effect as an absolute owner
thereof; (e) Bank may sell any of the Security or cause the same to be sold in
the Borough
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of Manhattan, New York City, or elsewhere, in one or more sales or parcels, at
such price and on such terms as Bank may deem advisable, for cash or on credit,
for immediate or future delivery, without assumption of any credit risk, at any
public or private sales or other dispositions, without demand of performance
(which demand is hereby expressly waived), on at least 5 days notice to
undersigned (if any notice is required by law) of any public sale or the time
after which a private sale or other disposition may be made (which notice
undersigned acknowledges is reasonable), and in connection therewith may grant
options and may impose reasonable conditions thereon, and the purchasers of any
of the Security so sold shall thereafter hold the same absolutely, free from any
claim or right of any kind, including any equity of redemption of undersigned
(any such equity being hereby expressly waived and released), and Bank or any of
its nominees or agents may buy the Security at any public sale and if the
Security is of a type sold in a recognized market, or is of a type which is the
subject of widely distributed standard price quotations, buy the Security at
private sale; and (f) in addition to and notwithstanding any other rights
granted by law or herein (or any limitations contained herein on any such
rights), Bank shall have the rights and remedies with respect to the Security of
a secured party under the Uniform Commercial Code of the State of New York.
Undersigned agrees that any action taken by Bank in accordance with this
paragraph shall be deemed to be commercially reasonable.
11. As used in this agreement, the term "Event of Default" shall mean: (a)
nonpayment when due of any of the Liabilities or failure on the part of an
Obligor (as hereinbefore defined) to observe or perform any agreement or
obligation to be observed or performed hereunder or under any other agreement or
instrument relating to the Liabilities or to any other liability or obligation
of an Obligor to Bank or its affiliates; (b) making by an Obligor of any
misrepresentation to Bank or its affiliates or failure on the part of an Obligor
to disclose to Bank or its affiliates any material fact in connection with
obtaining credit or an extension of credit, either contemporaneously herewith or
at any time prior or subsequent to the execution hereof; (c) failure of an
Obligor to furnish financial information forthwith on demand by Bank or its
affiliates or to permit the inspection of any books or records; (d) failure of
an Obligor to pay, withhold, collect or remit when assessed or due any tax,
assessment or other sum payable with respect to any of the Security (including
without limitation any premium on any insurance policy assigned to Bank or its
affiliates as part of the Security), or the making of any tax assessment against
any Obligor by the United States or any state or local governments; (e) entry of
judgment against, or issuance of any writ or order of attachment, injunction, or
garnishment, or the existence of any other lien against or with respect to any
property of an Obligor; (f) death of an Obligor, if an individual, or any member
of an Obligor, if a partnership or joint venture; (g) dissolution, liquidation
or other termination of existence, or adoption of any resolution for the
dissolution, liquidation or other termination of existence, of an Obligor; (h)
suspension of the usual business of an Obligor or the condemnation or seizure of
a substantial part of an Obligor's property by any governmental authority or
court at the instance thereof; (i) failure of an Obligor to generally pay its
debts as they become due or insolvency or business failure of an Obligor, filing
of an application for or appointment of a trustee, custodian, conservator or
receiver for an Obligor or of any part of an Obligor's property, assignment for
the benefit of creditors by an Obligor, filing of a petition in bankruptcy by or
against an Obligor, or commencement by or against an Obligor of any proceeding
under any bankruptcy or insolvency law or any other law relating to the relief
of debtors, readjustment of indebtedness, reorganization, receivership,
composition or extension; (j) failure to comply with the provisions of any lease
covering premises where any of the Security is located or of any statue, law,
ordinance or rule applicable
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to the conduct of an Obligor's business; (k) making or sending notice of any
intended bulk transfer by an Obligor; (l) failure on the part of undersigned or
any of the Security to comply with Regulation U of the Federal Reserve Board or
any comparable provision of law hereinafter enacted; (m) such a change in the
condition or affairs (financial or otherwise) of an Obligor as in the opinion of
Bank or its affiliates impairs the Security or increases the risk of Bank or its
affiliates with respect to the Liabilities or if Bank or its affiliates deem
themselves insecure; (n) default with respect to any indebtedness of an Obligor
to any other individual or entity if such default would enable said individual
or entity to accelerate the maturity of such indebtedness; (o) any Obligor shall
seek to rescind or revoke its guarantee or otherwise to terminate its liability
for future Liabilities; (p) if at any time the market value of any security
should decline to such an extent as in the sole and unrestricted opinion of Bank
or its affiliates, may make the equity insufficient collateral security for the
payment of the Liabilities; or (q) if at any time the collateral or any other
security held by Bank or its affiliates shall, in their sole and unrestricted
judgment, be unsatisfactory.
12. Notwithstanding any possession of the Security by Bank, whether on its
own behalf or on behalf of others, undersigned shall remain liable for the
payments in full of the Liabilities. Undersigned assumes all liability and
responsibility for the Security, and the obligation of undersigned to pay the
Liabilities shall in no way be affected or diminished by reason of the fact that
any of the Security may be lost, destroyed, stolen, damaged or for any other
reason whatsoever be or become unavailable to undersigned or that the value of
the Security shall be diminished. In the event of any partial or complete loss
or destruction of any of the Security by any means, undersigned shall, at its
own expense, cause such repairs to be made as Bank may deem appropriate for its
protection or, at the option of Bank, replace the Security with new Security
having a value equal to the value of the lost or destroyed Security prior to
such loss or destruction. Undersigned agrees, at its own expense, to keep all
insurable Security insured against loss or damage by fire, theft or any other
risk to which the Security may be subject (including without limitation such
hazards as Bank may specify), for the full insurable value thereof, under
policies and with insurers acceptable to Bank, which polices shall provide for
all losses to be payable to Bank as an additional named insured and provide for
at least 30 days prior notice to Bank of any intended nonrenewal, cancellation
or modification of the policy. Undersigned will deliver to Bank on request
policies or certificates of such insurance with evidence of payment of the
premium thereon. If undersigned fails to maintain said insurance, then, in
addition to any other right or remedy that Bank may have and without waiving the
consequences of such default, Bank may but need not obtain and maintain said
insurance, at the expense of undersigned, which expense shall be deemed part of
the Liabilities and shall be payable to Bank on demand. Bank is irrevocably
authorized to file claims and shall have the sole right to retain insurance
claims adjustors, adjust, settle and collect claims under said insurance by such
means, at such times, on such terms and in the name of Bank or undersigned, as
Bank may see fit, and in the name and on behalf of undersigned to execute
releases and endorse checks or drafts payable in respect of any such insurance
claims. All sums received by Bank from any such insurance may, in Bank's sole
discretion, be held as part of the Security and/or applied as hereinafter
provided.
13. Bank, at any time, at its option, may apply all or any part of any net
cash receipts, after deducting all costs and expenses of every kind incurred
therein or incidental to the retaking. holding, preparing for sale, selling,
leasing, or the like of the Security or in any way relating to
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the rights of Bank thereunder, including attorneys' fees and legal expenses,
from the Security (whether received on a sale of the Security or, on collection
as proceeds of insurance in accordance with this agreement, or otherwise) to the
payment, in whole or in part. of principal of and/or interest on any or all of
the Liabilities, whether or not then due, allocating the same as it shall elect,
making rebate of interest or discount to the extent required by law and so as
not to make the rate of interest charged unlawful with respect to undersigned.
If any Liabilities shall be contingent, Bank may retain a sufficient amount of
the net cash receipts from the Security to cover the largest aggregate sum which
may become due or owing thereunder with prospective interest, costs, expenses
and attorneys' fees and shall not be chargeable with any interest with respect
thereto.
14. Until the occurrence of an Event of Default or notice from Bank
terminating or limiting the right of undersigned to do so (which notice may be
sent by Bank at any time in its sole discretion, and whether or not an Event of
Default has occurred or is threatened), or, in the case of collection,
compromise, or adjustment of accounts receivable, until Bank takes any action
pursuant to this agreement, undersigned may sell or lease in the ordinary course
of its regular business inventory constituting a part of the Security and may
collect, compromise and adjust accounts receivable constituting a part of the
Security, all on such terms as undersigned may in good faith deem advisable in
the ordinary course of its regular business, and may retain all sums so
collected. Except as permitted by this paragraph, undersigned may not sell,
lease, assign or otherwise dispose of any of the Security without the prior
written consent of Bank. In addition, undersigned may not sell, assign or
otherwise dispose of any shares of stock or other securities now owned or
hereafter acquired by undersigned which are issued by the same issuer and are of
the same class as any shares of stock or other securities constituting a part of
the Security. Undersigned shall keep all of the Security which is not held at
Bank or at some other place designated by Bank, at undersigned's premises listed
below and shall not remove any of the Security therefrom without Bank's prior
written consent.
15. If in its sole discretion Bank deems it desirable, Bank may remove any
Security held by Bank from the place where such Security may now or hereafter be
located to any other place and deal with such Security there as herein provided.
16. Upon the occurrence of an Event of Default, and at any time
thereafter, Bank shall have and may exercise, without further notice, a right of
set-off and/or banker's lien against and in respect of any of the Security then
or thereafter held by Bank. Any right of set-off exercise by Bank shall be
deemed to have been exercised immediately on the occurrence of an Event of
Default, even though such set-off is made or entered on the books of Bank
subsequent thereto.
17. Bank shall not be deemed to have modified or waived any of its rights
hereunder or any terms or conditions hereof unless such modification or waver is
in writing and signed by a duly authorized officer of Bank. No such modification
or waiver, unless so expressly stated herein, shall be effective as to any
transaction which occurs subsequent to the date of such modification or waiver
nor shall it constitute a continuing modification or waiver. No course of
dealing between undersigned and Bank shall be effective to change or modify or
to discharge in whole or part this agreement. No delay on the part of Bank in
exercising any power or right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any power or right hereunder preclude
any other or further exercise thereof of the exercise of any other
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power or right. All rights and remedies of Bank with respect to the Liabilities
or Security, whether evidence hereby or by any other instrument, document or
otherwise, shall be cumulative and may be exercised singularly or concurrently.
18. Bank may assign and/or transfer to any assignee or transferee of any
Liabilities, any or all of the Security and Bank's rights hereunder with respect
thereto, and thereafter Bank shall be fully discharged from all responsibility
with respect to the Security so assigned and/or transferred. Such assignee or
transferee shall be vested with all powers and rights of Bank hereunder with
respect to such Security, but Bank shall retain all rights and powers hereby
given with respect to any of the Security not so assigned or transferred.
Undersigned will not assert against any assignee or transferee of any of the
Liabilities any claims or defenses it may have against Bank. Bank may pledge any
of the Security hereunder (either alone or with others) to the United States or
to the Federal Reserve Bank of New York, in its own right or as agent of the
United States, or to others, to secure deposits or other obligations of Bank of
any amounts whatever.
19. Undersigned hereby waives presentment, notice of dishonor and protest
with respect to all instruments included in or evidencing the Liabilities or the
Security and, except as specified herein, any and all other notices and demands
whatsoever, whether or not relating to such instruments.
20. Undersigned will indemnify and save Bank harmless from and against all
loss, damage, claims and actions, whether groundless or otherwise, arising in
connection with this agreement, the Liabilities or the Security, and all costs
and expenses (including attorneys' fees) incurred by Bank in respect thereof.
Undersigned agree that, whenever an attorney is used to enforce this agreement
or to enforce, declare, collect or adjudicate any rights or obligations under
this agreement or with respect to the Liabilities or the Security or collateral
security, whether by suit or by any other means whatsoever, an attorney's fee of
15% of the principal and interest then due thereunder or hereunder shall be
payable by such of undersigned against whom this agreement or any obligation or
right hereunder is sought to be enforced, declared or adjudicated.
21. If any term, condition or provision of this agreement or any other
agreement or document executed in connection herewith or in connection with any
of the Liabilities or Security is determined to be invalid or unenforceable,
such determination shall not affect the validity or enforceability of any other
term, condition or provision.
22. Any demand upon or notice to undersigned that Bank may elect to give
shall be effective if deposited in the mails addressed to or otherwise delivered
to undersigned at the address set forth below or if undersigned has notified
Bank in writing by registered mail of a change of address, at the last address
of which Bank has received notice. Demands or notices addressed or otherwise
delivered to the address at which Bank customarily communicates with undersigned
shall also be effective. Any notice to Bank shall be deemed effective only if
sent to and received at the branch, division or department of Bank conducting
the transaction or transactions hereunder.
23. If any of the Security is or is to be attached to or installed or
located on real estate, undersigned will upon demand furnish Bank with a
subordination or disclaimer signed by all
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persons having an interest in said real estate of any interest equal to or prior
to Bank's interest in the Security.
24. From and after maturity (whether by acceleration or otherwise) of any
of the Liabilities, any unpaid balance remaining shall bear interest at the
higher of 12% per annum or 3% in excess of the rate specified in the instrument
evidencing the Liability until payment is actually made (regardless of whether a
judgment is obtained prior to such payment). Anything in this agreement or any
other agreement, instrument or document to the contrary notwithstanding, in no
event shall interest on any Liability exceed the maximum rate permitted under
any applicable law or regulation, and if any provision of this agreement or any
other agreement, instrument or document is in contravention of any such law or
regulation, such provision shall be deemed amended to provide for interest at
said maximum rate.
25. Undersigned, if more than one. shall be jointly and severally liable
hereunder and all provisions hereof regarding the Liabilities or Security shall
apply to any Liability or any Security of any or all of them. This agreement
shall be binding upon the heirs, executors, administrators, successors and
assigns of undersigned and shall inure to the benefit of Bank and its successors
and assigns. All rights, powers and authority of Bank under this agreement or
otherwise permitted by law shall be exercisable by any affiliate of Bank whether
or not such affiliate may be an obligee of any of the Liabilities. If all
Liabilities shall at any time be paid in full, this agreement shall nonetheless
remain in full force and effect with respect to any Liabilities thereafter
incurred. If undersigned is a corporation, this agreement shall be binding upon
any other corporation into or with which undersigned shall be merged,
consolidated. reorganized or absorbed, or which shall acquired undersigned's
business or all or substantially all of its assets. If undersigned is a
partnership, the members thereof shall also be individually bound and liable
hereunder and this agreement shall continue in force notwithstanding any change
in or termination of such partnership, whether such change occurs through
voluntary withdrawal, death, retirement or otherwise. Except as otherwise
provided in this agreement, all terms used in this agreement which are defined
in the Uniform Commercial Code of the State of New York shall have the meanings
therein stated. Undersigned hereby expressly consent to and ratify all the
terms, provisions and conditions of any note or instrument now or hereafter
executed, delivered or taken in connection with any of the Liabilities and
further waive any further notice of the creation, maturity and nonpayment of any
such note or instrument or of any of the Liabilities evidenced thereby. If this
agreement shall differ in terms with. any ctner agreement or obligation or the
terms of any of the Liabilities, that which gives Bank the greater right shall
prevail.
26. If any of the Security is applied on account of any of the
Liabilities, neither undersigned nor any other party shall have any right of
subrogation to Bank's right in any other Security held by Bank with respect to
the Liabilities or any right of contribution from Bank by reason thereof.
27. Bank is authorized to correct patent errors herein. This agreement
shall take effect immediately upon execution by undersigned, and the execution
hereof by Bank shall not be required as a condition to the effectiveness of this
agreement or otherwise.
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<PAGE>
28. "Book Entry Securities" shall be deemed to include any and all
book-entry U.S. Treasury securities and other book-entry securities of
undersigned and maintained in an account at or for the benefit of Bank, and
whether maintained with the Federal Reserve System or otherwise. Undersigned
authorizes Bank to serve as its bailee and agent with respect to the
aforementioned Book Entry Securities and to take such action and to execute and
deliver such documents on behalf of undersigned as Bank deems necessary or
desirable in order to perfect Bank's security interest therein. Undersigned
hereby gives notice to Bank, in Bank's capacity as bailee and agent, of Bank's
security interest in the aforementioned Book Entry Securities.
29. In any litigation or legal proceeding arising out of, or relating to,
this agreement or any of the Liabilities or the Security, in which Bank and
undersigned shall be adverse parties, undersigned waives the right to interpose
any defense (including without limitation any statue of limitations and/or any
claim of laches), set-off or counterclaim of any kind not directly arising
herefrom or therefrom, as the case may be, and also waives the right to a trail
by jury. In the event that Bank brings any action or suit in any court to
enforce any or all of the Liabilities or any of Bank's rights hereunder and
irrespective of whether undersigned now or hereafter are resident or
non-resident of the State of New York, undersigned hereby waive personal service
of any and all process and consent that all such service of process shall be
made by certified or registered mail, return receipt requested, directed to
undersigned at the Chief Executive Office address of undersigned set forth below
or to the last known address of undersigned in the records of Bank and service
so made shall be complete ten (10) days after the same has been posted as
aforesaid. Undersigned hereby irrevocably submits to the jurisdiction of any New
York State or Federal Court located in New York City over any action, suit or
proceeding arising out of any dispute between undersigned and Bank.
30. This agreement shall be interpreted, and all the rights and
obligations arising hereunder or from any document relating hereto shall be
determined, in accordance with the laws of the State of New York.
Undersigned represents and warrants to Bank that (a) the location of
undersigned's chief executive office is as set forth below, (b) except as set
forth below, all of the Security is located either at Bank or at undersigned's
chief executive office, and/or (c) at additional or other premises set forth
below all of which are owned or leased by undersigned.
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<PAGE>
Chief Executive Office (for corporation Other Premises where Security is
or partnership) located
Principal Residence (for individuals) (street address, city, county,
(street address, city, county, state, state, zip code)
zip code):
5900 Hollis Street, Suite R-1 825 Buckley Road
Emeryville, Alameda County San Luis Obispo, San Luis Obispo
California 94608 County
California 93401
New York, New York
August 3, 2000
IN WITNESS WHEREOF, undersigned have signed, sealed and delivered this
instrument as of the date hereinbefore set forth.
(individuals sign below) (Corporations or Partnerships sign below)
(SEAL)
x /s/ Thomas J. Hopfensperger ###-##-#### AMERICOM USA, INC. 52-2068322
------------------------------------------- ---------------------------------
SSN (Name of Corporation or
Partnership) TIN
By:
------------------------------------------- ---------------------------------
x
------------------------------------------- ---------------------------------
SSN
------------------------------------------- ---------------------------------
Address Address
---------------------------------
STATE OF NEW YORK ) SS.:
COUNTY OF )
On the day of , , before me came
___________________________, to me known to be the individual(s) described
in, and who executed the foregoing instrument, and acknowledged that _he
executed the same.
-----------------------------------------
Notary Public, State of
-11-
<PAGE>
STATE OF NEW YORK ) SS.:
COUNTY OF )
On the day of , , before me came ___________________________, to me known to be
a partner of ________________________________, the partnership mentioned and
described in and which executed the foregoing instrument, and the said partner
duly acknowledges to me that _he executed said instrument for and on behalf of
and with the authority of the said partnership for the uses and purposes therein
mentioned.
-----------------------------------------
Notary Public, State of
STATE OF NEW YORK ) ss.:
COUNTY OF )
On the day of , , before me came ___________________________, to me known, who,
being by me duly sworn, did depose and say that _he resides at
___________________________________________ in _____________________ that _he is
the _____________________ of ________________________________________________
the corporation described in, and which executed the foregoing instrument of
guaranty; that _he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that _he signed h__ name thereto by
like order.
-----------------------------------------
Notary Public, State of
