CORPORATE RESOLUTION TO BORROW
------------------------------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$750,000.00 04-30-2001 91000
------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicablity
of this document to any particular loan or item.
------------------------------------------------------------------------------------------------------------------------
Borrower: Arc Communications, Inc. (TIN: ) Lender: Sovereign Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ocean Office
Tinton Falls. NJ 07724 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
I, the undarsigned Secretary or Asiistant Socratary of Arc Communication*, Inc.
(the "Corporation"), HEREBY CERTIFY that lhe Corporalion is organized and
existing undor and by virtue o1 the laws of the State of New Jarsey as a
corporation for profit, with its principal oftice at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, and is duly authorized to transact business in the
State of New Jersey.
I FURTHER CERTIFY that at a mooting of the Directors o1 the Corporation, duly
called and held on ___________________, at which a quorum was prosent and
votinci, or by othe, duly authorized corporata action in lieu of a ineeting, the
following rasolutlons were adopted:
BE IT RESOLVED, that any one (1) of the following named officers, employees, or
agents of this Corporation, whosq actual signatures are shown
NAME POSITION
---- --------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ President
acting for and on behalf of the Corporation and as its act and deed be, and he
or she hereby is, authorized and empowered:
Borrow Money. To borrow (iwn time to time from Sovereign Bank ("Lender"),
on such terms as may be agreed upon between the Corporation and Lender,
such sum or sums of money as in his or her judgment should be borroived,
without limitation.
Execute Notes. To execute and deliver to Lender the promissory note or
notes, or other evidence of credit accomodations of the Corporation, on
Lender's forms, at such rates of interest and on such terms aa may be
agreed upon, evidencing the sums of money 30 borrowed or any indebtedness
of the Corporation to Lender, and also to execute and deliver to Lender one
or more renewals, extensions, modifications. refinancings, consolidations,
or substitutions for one or more of the notes, any portion of the notes, or
any other evidence of credit accomodations.
Grant Security. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender, as security for the payment of
any loans or credit accomodatlons so obtained, any promissory notes so
executed (Including any amendments to or modifications, renewals, and
extensions of such promissory notes), or any other or further indebtedness
of the Corporation to Lender at any time owing, however the same may be
evidenced, any property now or hereafter belonging to the Corporation or in
which the Corporation now or hereafter may have an interest, including
without limitation all real property and all personal property (tangible
or intangible) of the Corporation. Such property may be mortgaged, pledged,
transferred, endorsed, hypothacated, or encumbered at the time such loans
are obtained or such indebtedness is incurred, or at any other time or
times, and may be either in addition to or in lieu of any property
theretofore mortgaged, pledged, transferred, endorsed, hypothecated, or
encumbered.
Execute Security Documents. To execute and deliver to Lender the forms of
mortgage, deed of trust, pledge agreement, hypothecation agreement, and
other security agreements and financing statements which may be submitted
by ▇▇▇▇▇▇, and which shall evidence the farms and conditions under and
pursuant to which such liens and encumbrances, or any of them, are given:
and also to execute and deliver to Lender any other written instruments,
any chattel paper, or any other collateral, of any kind or nature, which he
or she may in his or her discretion deem reasonably necessary or proper in
connection with or pertaining to the giving of the liens and encumbrances.
Negotiate Items. To draw, endorse, and discount with Lender all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness
payable to or belonging to the Corporation in which the Corporation may
have an interest, and either to receive cash for tha same or to cause such
proceeds to be credited to the account of the Corporation with ▇▇▇▇▇▇, or
to cause such other disposition of the proceeds derived therefrom as thay
may deem advisable.
Further Act. In the case of lines of credit, to designate additional or
alternate individuals as being authorized to request advances thereunder,
and in all oases, to do and perform such other acts and things, to pay any
and all fees and costs, and to execute and deliver such other documents and
agreements. Including agreements waiving the right to a trial by jury, as
he or she may in his or her discretion deem reasonably necessary or proper
in order to carry into effect the provisions of these Resolutions. The
following person or persons currontly are authorized to request advances
and authorize payments under the line of credit until ▇▇▇▇▇▇ receives
written notice of revocation of their authority: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to these
Resolutions and performed prior to tha passage ot these Resolutions are hereby
ratified and approved, that these Resolutions shall remain in full force and
effect and Lender may rely on these Resolutions until written notice of his or
her revocation ahall have been delivered to and received by Lender Any such
notice shall not affect any of the Corporation's agreements or commitments in
effect at the time notice is given.
BE IT FURTHER RESOLVED, that the Corporation will notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (a) change in the name of the Corporation, (b)
change in the assumed business name(s) of the Corporation, (c) change in the
management of the Corporation,, (d) change in the authorized signer(s), (e)
conversion of the Corporation to a new or different type of business entity, or
(f) change in any other aspect ot the Corporation that directly or indirectly
relates to any agreements between the Corporation and Lender, No change in the
name of the Corporation will taKe effect until after Lender has been notified.
I FUHTHER CERTIFY that the officer, omployee, or agent named above is duly
elected, appointed, or employed by or to the Corporation, as the case may be,
and occupies the position set opposite the name: that the foregoing Resolutions
now stand of record on the books of the Corporation: and that the Resolutions
are in full force arid effect and have not been modified or revoked in any
manner whatsoever.
CORPORATE RESOLUTION TO BORROW
Loan No (Continued) Page 2
--------------------------------------------------------------------------------
IN TESTIMONY WHEREOF, I have hereunto sat my hand and affixed tha seal or the
Corporation on _________________ and attest that the signature set opposite the
names listed above are their genuine signaturea.
CERTIFIED TO AND ATTESTED BY:
CORPORATE X /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
SEAL
X
-------------------------------------
NOTE: In case the secretary or other certifying officer is designed by the
foregoing resolutions as one of the signing officers, it is advisable to have
this certificate signed by a second Officer or Director of the Corporation
--------------------------------------------------------------------------------
CORPORATE RESOLUTION TO GUARANTEE
------------------------------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$750,000.00 04-30-2001 91000
------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicablity
of this document to any particular loan or item.
------------------------------------------------------------------------------------------------------------------------
Borrower: Arc Communications, Inc. (TIN; ) Lender: Sovereign BanK
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Guarantor: Arc Mesa Educators, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
I, the undersigned Secretary or Assistant Secretary of Arc Mesa Educators, Inc.
(the "Corporation"), HEREBY CERTIFY that the Corporation is organized and
existing under and by virtue of the laws of the State of New Jersey with its
principal office at ▇▇▇ ▇▇▇▇▇▇▇▇▇.▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
I FURTHER CERTIFY that at a meeting of the Directors of the Corporation, duly
called and held on __________________________, at which a quorum was present and
voting, or by other duly authorized corporate action in lieu of a meeting, the
following resolutions were adopted:
BE IT RESOLVED, that any one (1) of the following named officers, employees, or
agents of this Corporation, whose actual signatures are shown below:
NAME POSITION ACTUAL SIGNATURE
---- -------- ----------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ President X /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
acting for and on behalf of the Corporation and as its act and deed be, and he
or she hereby is, authorized and empowered:
Quaranty. To guarantee or act as surety for loans or othar financial
accommodations to Arc Communications. Inc from Sovereign ▇▇▇▇▇ ("Lender")
on such guarantee or surety terms as may be agreed upon between the
officers or employaes of friis Corporation and Lender and in such sum or
sums of money as in his or har judgment should bo guaranteed or assured,
without lirnit (the "Guaranty").
Grant Security. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender, as security to the Guaranty, any
property now or hereafter belonging to the Corporation or in which the
Corporation now or hereafter may have an interest, including without
limitation all real property and all personal property (tangible or
intangible) of the Corporation. Such property may be mortgaged, pledged,
transferred, endorsed, hypothecated, or encumbered at the time such loans
are obtained or such indebtedness is incurred, or at any other time or
times, and may be either in addition to or in lieu of any property
theretofore mortgaged, pledged, transferred, endorsed, hypothecated, or
encumbered. The provisions of these Resolutions authorizing or relating to
the pledge, mortgage, transfer, endorsement, hypothecation, granting of a
security interest in, or in any way encumbering, the assets of the
Corporation shall include, without limitation, doing so in order to lend
collateral security for the indebtedness, now or hereafter existing, and of
any nature whatsoever, of Arc Communications, Inc. to Lender. The
Corporation has considered the value to itself of lending collateral in
support of such indebtedness, and the Corporation represents to Lender that
the Corporation is benefited by doing so.
Execute Security Documents. To execute and deliver to ▇▇▇▇▇▇ the forms of
mortgage, deed of trust, pledge agreement, hypothecation agreement, and
other security agreements and financing statements which may be submitted
by ▇▇▇▇▇▇, and which shall evidence the terms and conditions under and
pursuant to which such liens and encumbrances, or any of them, are given;
and also to execute and deliver to Lender any other written instruments,
any chattel paper, or any other collateral, of any kind or nature, which he
or she may in his or her discretion deem reasonably necessary or proper in
connection with or pertaining to the giving of the liens and encumbrances.
Further Acts. To do and perform such other acts and things and to execute
and deliver such other documents and agreements, including agreements
waiving the right to a trial by jury, as he or shs may in his or her
discretion deem reasonably necessary or proper in order to carry into
effect the provisions of these Resolutions.
BE IT FUMTHEH RESOLVED, that the Corporation will notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from lime to time) prior to any (a) change in tha name of the Corporation, (b)
change in the assumed business name(s) of the Corporation, (c) change in the
managament of the Corporation, (d) change in the authorized signer(s), (e)
conversion of the Corporation to a new or different type of business entity, or
(f) change in any other aspect of the Corporation that directly or indirectly
relates to any agreements between the Corporation and Lender. No change in the
name of tha Corporation will take effect until after Lender has been notified.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to these
Resolutions and performed prior to the passage of these Resolutions are hereby
ratified and approved, that these Resolutions shall remain in full force and
effect and Lender may rely on these Resolutions until written notice of his or
her revocation shall have been delivered to and received by ▇▇▇▇▇▇. Any such
notice shall not affect any of the Corporation's agreements or commitments in
effect at the time notice is given.
I FURTHER CERTIFY (that the officer, employee, or agent named above is duly
elected, appointed, or employed by or for the Corporation, as the case may be,
and occupies the position set opposite the name; that the foregoing Resolutions
now stand of record on the books of the Corporation: and that the Resolutions
are in full force and effect and have not been modified or revoked in any manner
whatsoever.
BUSINESS LOAN AGREEMENT
------------------------------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$750,000.00 04-30-2001 91000
------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicablity
of this document to any particular loan or item.
------------------------------------------------------------------------------------------------------------------------
Borrower: Arc Communications. Inc. (TIN: ) Lender: Sovereign Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THIS BUSINESS LOAN AGREEMENT between Arc Communications, Inc. ("Borrower") and
Sovernign Bank ("Lender") is made and executed on the following terms and
conditions. Borrower has received prior commercial loans from Lender or has
applied to Lender for a commercial loan or loans and other financial
accommodations. Including those which may be described on any exhibit or
schedule attached to this Agreement. All such loans and financial
accommodations, together with all future loans and financial accommodations from
Lender to Borrower, are referred to in this Agreement Individually as the "Loan"
and collectively as the "Loans." Borrower understands and agrees that: (a) In
granting, renewing, or extending any Loan, Lender 18 relying upon Borrower's
representations, warranties, and agreements, as set forth in this Agreement; (b)
the granting, renewing, or extending of any Loan by Lender at all times shall be
subject to Lender's sole judgment and discretion; and (c) all such Loans shall
be and shall remain subject to the following terms and conditions or this
Agreement.
TERM. This Agreement shall ba effective as of ___________, and shall continue
thereafter until all Indebtedness of Borrower to Lender has been performed in
full and the parties terminate this Agreement in writing.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this 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 (his Business Loan Agreement, as this
Business Loan Agreement may be amended or modified from time to time,
together with all exhibits and schedules attached to this Business Loan
Agreement from time to time.
Borrower. The word "Borrower" means Arc Communications, Inc. The word
"Borrower" also includes, as applicable, all subsidiaries and affiliates of
Borrower as provided below in the paragraph titled "Subsidiaries and
Affiliates."
CERCLA. The word "CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980. as amended.
Collateral. Tha word 'Collateral" means and includes without limitation all
property and assets granted as collateral security for a Loan, whether real
or personal property, whether granted directly or indirectly, whether
granted now or in the future, and whether granted in the form of a security
Interest, mortgage, deed of trust, assignment, pledge, chattel mortgage,
chattel trust, factor's lien, equipment trust, conditional sale, trust
receipt, lien, charge, lien or title retention contract, lease or
consignment intended as a security device, or any other security or lien
interest whatsoever, whether created by law. contract, or otherwise
ERISA. The word 'ERISA" (means the Employee Retirement Income Security Act
of 1974, as amended.
Event of Default. The words "Event of Default" mean and include without
limitation any of the Events of Default set forth below in the section
titled "EVENTS OF DEFAULT."
Grantor. The word "Grantor" means and includes without limitation each and
all of the persons or entitles granting a Security Interest in any
Collateral for the indebtedness, including without limitation all Borrowers
granting such a Security Interest.
Guarantor. The word "Guarantor" means and includes without limitation each
and all of the guarantors, sureties, and accommodation parties in connection
with any Indebtedness.
Indebtedness. The word "Indebtedness" means and includes without limitation
all Loans, together with all other obligations, debts and liabilities of
Borrower to Lender, or any one or more of them, as well as all claims by
Lender against Borrower, or any one or more of them, whether now or
hereafter existing, voluntary or involuntary, due or not due, absolute or
contingent, liquidated or unliquidated; whether Borrower may be liable
individually or jointly with others: whether Borrower may be obligated as a
guarantor, surety, or otherwise: whether recovery upon such Indebtedness may
be or hereafter may become barred by any satute of limitations: and whether
such Indebtness may be or hereafter may become otherwise unenforceable.
Lender. The word "Lender' means Sovereign Bank, its successors and assigns,
Loan. The word "Loan" or "Loans" means and includes without limitation any
and all commercial loans and financial accommodations from Lender to
Borrower, whether now or hereafter existing, and however evidenced,
including without limitation those loans and financial accommodations
described herein or described on any exhibit or schedule attached to this
Agreement from time to time.
Note. The word "Note" means and Includes without limitation Borrower's
promissory note or notes, if any, evidencing Borrower's Loan obligations in
favor of ▇▇▇▇▇▇, as well as any substitute, replacement or refinancing note
or notes therefor.
Permitted Lien. The words "Permitted Liens" mean; (a) liens and security
interests securing Indebtedness owed by Borrower to Lender; (b) liens for
taxes, assessments, or similar charges either not yet due or being contested
in good faith; (c) liens of materialmen, mechanics, warehousemen, or
carriers, or other like liens arising in the ordinary course of business and
securing obligations which are not yet delinquent: (d) purchase money liens
or purchase money security interests upon or in any property acquired or
held by Borrower in the ordinary course of business to secure indebtedness
Outstanding on the date of this Agreement or permitted to be incurred under
the paragraph of this Agreement titled "Indebtedness and Liens": (e) liens
and security Interests which, as of the date of this Agreement, have been
disclosed to and approved by the Lender in writing: and (f) those liens and
security interests which in the aggregate constitute an immaterial and
insignificant monetary amount with respect to the net value of ▇▇▇▇▇▇▇▇'s
assets.
Related Documents. The words "Related Documents" mean and 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 connoctlon with ths Indebtedness.
Security Agreement. The words "Security Agreement" mean and include without
limitation any agreements, promises, covenants, arrangements, understandings
or other agreements, whether created by law, contract, or otherwise,
evidencing, governing, representing, or creating a Security Intarest.
Security Interest. The words "Security Interest" mean and include without
limitation any type of collateral security, whether in the form of a lien,
charge, mortgage, deed of trust, assignment, pledge, chattel mortgage,
chattel trust, factor's lien. equipment trust, conditional sale, trust
receipt, lien or title retention contract, lease or consignment intended as
a security device, or any other security or lien interest whatsoever,
whether created by law, contract, or otherwise.
IN TESTIMONY WHEREOF, I have hereunto sat my hand and affixed tha seal or the
Corporation on _________________ and attest that the signature set opposite the
names listed above are their genuine signaturea.
CERTIFIED TO AND ATTESTED BY:
CORPORATE X /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
SEAL
X
-------------------------------------
NOTE: In case the secretary or other certifying officer is designed by the
foregoing resolutions as one of the signing officers, it is advisable to have
this certificate signed by a second Officer or Director of the Corporation
--------------------------------------------------------------------------------
BUSINESS LOAN AGREEMENT
Loan No (Continued) Page 2
▇▇▇▇. The word "▇▇▇▇" means the Superfund Amendments and Reauthorization
Act of 1986 as now of thereafter amended.
CONDITIONS PRECEDENT TO EACH ADVANCE. ▇▇▇▇▇▇'s obligation to make the initial
Loan Advance and each subsequent Loan Advance under this Agreement shall be
subject to the fulfillment to ▇▇▇▇▇▇'s satisfaction of all of the conditions set
forth in the Agreement and in the Related Documents.
Loan Documents. Borrower shall provide to Lender in form satisfactory to
Lender the following documents for the Loan: (a) the Note, (b) Security
Agreements granting to Lender security interests in the Collateral, (c)
Financing Statements perfecting Lender's Security Interests; (d) evidence of
insurance as required below: and (e) any other documents required under this
Agreement or by Lender of its counsel, including without limitation any
guaranties described below.
Borrower's Authorization. Borrower shall have provided in form and substance
satisfactory to Lender properly certified resolutions, duly authorizing the
execution and delivery of this Agreement, the Note and the Related
Documents, and such other authorizations and other documents and instruments
as Lender or its counsel, in their sole discretion, may require.
Payment of Fees and Expenses. Borrower shall have paid to Lender all fees,
charges, and other expenses which are than due and payable as specified in
this Agreement or any Related Document.
Representations and Warranties. The representations and warranties set forth
in this Agreement, in the Related Documents, and in any document or
certificate delivered to Lender under this Agreement are true and correct,
No Event of Default. There shall not exist at the time of any advance a
condition which would constitute an Event of Default under this Agreement,
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of Loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
Organization. Borrower is a corporation which is duly organized, validly
existing, and in good standing under the laws of the State of New Jersey and
is validly existing and in good standing in all states in which Borrower is
doing business. Borrower has the full power and authority to own its
properties and to transact the businesses in which it is presently engaged
or presently proposes to engage. Borrower also is duly qualified as a
foreign corporation and is in good standing in all states in which the
failure to so qualify would have a material adverse effect on its businesses
or financial condition.
Authorization. The execution, delivery, and performance of this Agreement
and all Related Documents by ▇▇▇▇▇▇▇▇, to the extent to be executed.
delivered or performed by Borrower, have been duly authorized by all
necessary action by Borrower; do not require the consent or approval of any
other person, regulatory authority or governmental body; and do not conflict
with, result in a violation of, or constitute a default under (a) any
provision of its articles of incorporation or organization, or bylaws, or
any agreement or other instrument binding upon Borrower or (b) any law,
governmental regulation, court decree, or order applicable to Borrower.
Financial Information. Each financial statement of ▇▇▇▇▇▇▇▇ supplied to
Lender truly and completely disclosed ▇▇▇▇▇▇▇▇'s financial condition as of
the date of the statement, and there has been no material adverse change in
Borrower's financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Borrower has no material contingent
obligations except as disclosed in such financial statements.
Legal Effect. This Agreement constitutes, and any instrument or agreement
required hereunder to be given by ▇▇▇▇▇▇▇▇ when delivered will constitute,
legal, valid and binding obligations of Borrower enforceable against
Borrower in accordance with their respective terms.
Properties. Except as contemplated by this Agreement or as previously
disclosed in ▇▇▇▇▇▇▇▇'s financial statements or in writing to Lender and as
accepted by ▇▇▇▇▇▇, and except for property tax liens for taxes not
presently due and payable. ▇▇▇▇▇▇▇▇ owns and has good title to all of
▇▇▇▇▇▇▇▇'s properties free and clear of all Security Interests, and has not
executed any security documents or financing statements relating to such
properties. All of ▇▇▇▇▇▇▇▇'s properties are titled in Borrower's legal
name, and ▇▇▇▇▇▇▇▇ has not used, or filed a financing statement under, any
other name for at least the last five (5) years.
Hazardous Substances. The terms "hazardous waste,' "hazardous substance,"
"disposal," "release,' and "threatened release," as used in this Agreement,
shall have the same meanings as set forth in the "CERCLA." "▇▇▇▇," the
Hazardous Materials Transportation Act, 49 U.S.C, Section 1801, et seq., the
Resource Conservation and Recovery Act. 42 U.S.C. Section 6901, et seq., the
New Jersey Industrial Site Recovery Act, NJSA Section 13:1K-6 ("ISRA"), the
New Jersey Spill Compensation and Control Act, NJSA 58:10-23.11, el seq. or
other applicable state or Federal laws, rules, or regulations adopted
pursuant to any of the foregoing. Except as disclosed to and acknowledged by
▇▇▇▇▇▇ in writing, Borrower represents and warrants that: (a) During the
period of Borrower's ownership of that properties, there has been no use,
generation, manufacture, storage, treatment, disposal, release or threatened
release of any hazardous waste or substance by any person on, under, about
or from any of the properties, (b) Borrower has no knowledge of, or reason
to believe that there has been (i) any use, generation, manufacture,
storage. treatment, disposal, release, or threatened release of any
hazardous waste or substance on, under, about or from the properties by any
prior owners or occupants of any of the properties, or (ii) any actual or
threatened litigation or claims of any kind by any person relating lo such
matters. (c) Neither Borrower nor any tenant, contractor, agent or other
authorized user of any of the properties shall use. generate, manufacture,
store, treat, dispose of, or release any hazardous waste or substance on.
under, about or from any of the properties: and any such activity shall be
conducted in compliance with all applicable federal, state, and local laws,
regulations, and ordinances, including without limitation those laws,
regulations and ordinances described above. Borrower authorizes Lender and
its agents to enter upon the properties to make such Inspections and tests
as Lender may deem appropriate to determine compliance of the properties
with this section of the Agreement. Any inspections or tests made by Lender
shall be at Borrower's expense and for Lender's purposes only and shall not
be construed to create any responsibility or liability on the part of Lender
to Borrower or lo any other person. The representations and warranties
contained herein are based on Borrower's due diligence in investigating the
properties for hazardous waste and hazardous substances. Borrower hereby (a)
releases and waives any future claims against Lender for indemnity or
contribution in the event Borrower 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, losses, liabilities, damages, penalties, and
expenses which Lender may directly or indirectly sustain or suffer resulting
from a breach of this section of the Agreement or as a consequence of any
use, generation, manufacture, storage, disposal, release or threatened
release of a hazardous waste or substance on the properties. The provisions
of this section of the Agreement, including the obligation to Indemnify,
shall survive the payment of the indebtedness and the termination or
expiration of this Agreement and shall not be affected by Lender's
acquisition of any interest in any of the properties, whether by foreclosure
or otherwise.
Litigation and Clairns. No litigation, claim, investigation, administrative
proceeding or similar action {including those (or unpaid taxes) against
Borrower is pending or threatened, and no other event has occurred which may
materially adversely affect Borrower's financial condition or properties.
other than litigation, claims, or other events. If any, that have been
disclosed to and acknowledged by ▇▇▇▇▇▇ in writing.
Taxes. To the best of ▇▇▇▇▇▇▇▇'s knowledge, all tax returns and reports of
Borrower that are or were required to be filed, have been filed, and all
taxes, assessments and other Environmental charges have been paid in full,
except those presently being or to be contested by ▇▇▇▇▇▇▇▇ in (in faith in
the ordinary course of business and for which adequate reserves have been
provided.
Lien Priority. Unless otherwise previously disclosed to London in writing.
Borrower has not entered into or grants any Security Agreements, or
permitted the filing or attachment of any Security Interests on or affecting
any of the Collateral directly or indirectly securing repayment of
BUSINESS LOAN AGREEMENT
Loan No (Continued) Page 2
▇▇▇▇▇▇▇▇'s Loan and Note, that would be prior or that may in any way be
superior to Lender's Security Interests and rights in and to such
Collateral.
Binding Effect. This Agreement, the Note. all Security Agreements directly
or indirectly securing repayment of ▇▇▇▇▇▇▇▇'s Loan and Note and all of the
related Documents are binding upon Borrower as well as upon ▇▇▇▇▇▇▇▇'s
successors, representatives and assigns, and are legally enforceable in
accordance with their respective terms.
Commercial Purpose. Borrower intends to use the Loan proceeds solely for
business or commercial related purposes.
Employee Benefit Plans. Each employee benefit plan as to which Borrower may
have any liability compiles in a}\ material respects with all applicable
requirements o< law and regulations, and (i) no Reportable Event nor
Prohibited Transaction (as defined in ER13A) has occurred with rasped to
any such plan, (ii) Borrower has not withdrawn from any such plan or
initiated steps to do so, (iii) no steps have been taken to terminate any
such plan. and (iv) there are no unfunded liabilities other than those
previously disclosed lo Lender in writing.
Location of Borrower"s Offices and Records. ▇▇▇▇▇▇▇▇'s place of business,
or ▇▇▇▇▇▇▇▇'s Chief executive office, if ▇▇▇▇▇▇▇▇ has more than one place
of business, Is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇. NJ 07724.
Unless Borrower has designated otherwise in writing this location is also
the office or offices where Borrower keeps its records concerning the
Collateral.
Year 2000. Borrower warrants and represents that all software utilized In
the conduct of ▇▇▇▇▇▇▇▇'s business will have appropriate capabilities and
compatibility for operation to handle calendar dates failing on or after
January 1, 2000, and all information pertaining to such calendar dates, in
the same manner and with the same functionality as the software does
respecting calendar dates falling on or before December 31, 1999. Further.
Borrower warrants and represents that the data-related user interface
functions, data-fields, and data-related program instructions and functions
of the software include the indication of the century,
Information. All information heretofore or contemporaneously herewith
furnished by Borrower to Lender for the purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all
information hereafter furnished by or on behalf of Borrower to Lender will
be, the and accurate in every material respect on the date as of which such
information is dated or certified, and none of such Information is or will
be incomplete by omitting lo slate any material fact necessary to make such
information not misleading.
Survival of Representation and Warranties. ▇▇▇▇▇▇▇▇ understands and agrees
that ▇▇▇▇▇▇, without independent investigation, is relying upon the above
representations and warranties in extending Loan Advances to Borrower.
▇▇▇▇▇▇▇▇ further agrees that the foregoing representations and warranties
shall be continuing in nature and shall remain in full force and effect
until such time as Borrower's Indebtedness shall be paid in full, or until
this Agreement shall be terminated in the manner provided above, whichever
is the last to occur-
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with ▇▇▇▇▇▇ that, while
this Agreement Is in effect, Borrower will:
Litigation. Promptly inform ▇▇▇▇▇▇ in writing of (a) all material adverse
changes in Borrower's financial condition, and (b) all existing and all
threatened litigation, claims, investigations, administrative proceedings
or similar actions affecting Borrower or any Guarantor which could
materially affect the financial condition of Borrower or the financial
condition of any Guarantor.
Financial Records. Maintain its books and records in accordance with
generally accepted accounting principles, applied on a consistent basis,
and permit ▇▇▇▇▇▇ to examine and audit ▇▇▇▇▇▇▇▇'s books and records at all
reasonable times.
Additional information. Furnish such additional information and statements,
lists of assets and liabilities, agings of receivables and payables,
inventory schedules, budgets, forecasts, >lon<>uch security, with or without the substitution of new
collateral; (d) to release, substitute, agree not to sue, or deal with any one
or more of Borrower's sureties, endorsers, or other guarantors an any terms or
In any manner Lender rnay choose; (e) to determine how, when and what
application of payments and credits shall be made on the indebtedness, (f) to
apply such security and direct the order or manner of sale thereat. Including
without limitation, any nonjudiclal sale permitted by the terms ol the
controlling security agreement or deed of trust, as Lender in its
COMMERCIAL GUARANTY
Loan No (Continued)
discretion may determina; (g) to sell, transfer, asaign, or grant participations
in all or any part of the Indebtedness; and (h) to assign or transfer this
Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender that (a) no representations or agreements of any kind have been made to
Guarantor which would limit or qualify In any way the terms ol this Guaranty:
(b) this Guaranty is executed at Borrower's request and not at the request of
Landsr; (c) Guarantor has full power, right and authority to enter into this
Guaranty, (d) the provisions ol this Guaranty do not conflict with or result in
a default under any agreement or other instrument binding upon Guarantor and do
not result in a violation of any law, regulation, court decree or order
applicable to Guarantor: (e) Guarantor has not and will not, without the prior
written consent of Lender. sell, lease, assign, encumber, hypothecate, transfer,
or otherwise dispose of all or substantially all of Guarantor's assets, Or any
interest therein; (f) upon Lender's rsquast, Guarantor will provido to Lender
financial and credit information in (orm acceptable to Lender, and all such
financial information which currently has been. and all future financial
Information which will be provided to Lender is and will be true and correct in
all material respects and fairly present the financial condition of Guarantor as
of the dates the financial information is provided: (g) no material adverse
change has occurred in Guarantor's financial condition since the data of the
most recent financial statements provided to Lender and no event has oceurrad
which may matarially adversely affect Guarantor's financial condition: (h) no
litigation, claim, investigation, administrative proceeding or similar action
(including those for unpaid taxes) aBainst Guarantor is pending or threatened;
(i) Lender has made no representation to Guarantor as to the creditworthiness of
Borrower: and (j) Guarantor has established adequate means of obtaining from
Borrower on a continuing basis information regarding Borrower's financial
condition. Guarantor agroes to keep adequately informed from such means of any
facts, events, or circumstancos which might in any way affect Guarantor's risks
under this Guaranty, and Guarantor further agrees that, absent a request for
Information, Lender shall have no obligation to disclose to Guarantor any
information or documents acquired by Lander in the course ol its relationship
with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives
any right to require Lender (a) to continue lending money or to extend other
credit to Borrower; (b) to make any presentment, protest, demand, or notice of
any kind, including notice of any nonpayment of the indebtedness or of any
nonpayment related to any collateral, or notice of any action or nonaction on
the part of Borrower, Lender, any surety, endorser, or other guarantor in
connection with the Indebtedness or in connection with the creation of new or
additional loans or obligations: (c) to resort for paymant or to proceed
directly or at once against any person, including Borrower or any other
guarantor: (d) to procoed directly against or exhaust any collateral held by
Lender from Borrower, any other guarantor, or any other ▇▇▇▇▇▇: (e) to give
notice of the terms, time, and place of any public or private sale of personal
property security held by ▇▇▇▇▇▇ from Borrower or to comply with any other
applicable provisions of the Uniform Commercial Code; (f) to pursue any other
remedy within ▇▇▇▇▇▇'s powor: or (g) to commit any act or omission of any kind,
or at any time, with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses arising by reason of (a)
any "one action" or "anti-defioiency" law or any other law which may prevent
Lander from bringing any action, including a claim for deficiency, against
Guarantor, before or after ▇▇▇▇▇▇'s commencemont or completion of any
foreclosure action, either judicially or by exercise of a power of sale: (b) any
election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation, any loss of rights Guarantor
may suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (c) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the indebtedness: (d) any right to claim discharge of the Indebtedness on the
basis of unjustified impairment of any collateral for the Indebtedness: (e) any
statute of limitations, if at any time any action or suit brought by Lender
against Guarantor is commenced there is outstanding Indebtedness of Borrower to
Lender which is not barred by any applicable statute of limitations; or (f) any
defenses given to guarantors at law or in equity other than actual payment and
performance of the Indebtedness. If payment is made by ▇▇▇▇▇▇▇▇, whether
voluntarily or otherwise, or by any third party, on the indebtedness and
thereafter Lender is forced to remit the amount of that payment to ▇▇▇▇▇▇▇▇'s
trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, lha Indebtedness shall be
considered unpaid for the purpose of enforcement of this Guaranty- Guarantor
further waives and agrees not to assert or claim at any time any deductions to
the amount guaranteed under this Guaranty for any claim of setoff, counterclaim,
counter demand, recoupment or similar right, whether such claim, demand or right
may be asserted by the Borrower, The Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circurnstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waivar shall be effective only to the extent permitted by law or public policy.
▇▇▇▇▇▇'S RIGHT OF SETOFF. In addition to all liens upon and rights of setoff
against the moneys, securities or other property of Guarantor given to Lender by
law. Lender shall have, with respect to Guarantor's obligations to Lender under
this Guaranty and to the extent permitted by law, a contractual security
interest in and a right of setoff against, and Guarantor hereby assigns,
conveys, delivers, pledges, and transfers to Lender all of Guarantor's right,
title and interest in and lo, all deposits, monays, securities and other
property of Guarantor now or hereafter in the possession of or on deposit with
Lender, whether held in a general or special account cr deposit, whether held
jointly with someone else, or whether held for safekeeping or otherwise,
excluding however all IRA. ▇▇▇▇▇, and trust accounts. Every such security
interest and right of setoft may be exercised without demand upon or notice to
Guarantor. No security interest or right of setoff shall be deemed to have been
waived by any act or conduct on the pail of Lender or by any neglect to exercise
Such right of setoff or to enforce such security interest or by any delay in so
doing. Every right of setoff and security interest shall continue in full force
and effect until such right of setoff or security interest is specifically
waived or released by an instrument in writing executed by ▇▇▇▇▇▇.
SUBORDINATION OF ▇▇▇▇▇▇▇▇'S DEBTS TO GUARANTOR. Guarantor agrees that the
Indebtedness of Borrower to Lender, whether now existing or hereafter created,
shall be prior to any claim that Guarantor may now have or hereafter acquire
against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby
expressly subordinates any claim Guarantor may have against Borrower, upon any
account whatsoever, to any claim that Lender may now or hereaKer have against
Borrower. In the event of insolvency and consequent liquidation of the assets of
Borrower, through bankruptcy, by an assignment for the benefit of creditors, by
voluntary liquidation, or otherwise, the assets of Borrower applicable to the
payment of the claims of both ▇▇▇▇▇▇ and Guarantor shall be paid to Lender and
shall be first applied by ▇▇▇▇▇▇ to the Indebtedness of Borrower to Lender.
Guarantor does hereby assign to Lender all claims which it may have or acquire
against Borrower or againsi any assignee or trustee in bankruptcy of Borrower;
provided however, that such assignment shall be affective only for the purpose
of assuring lo Lander full payment in legal tender of the Indebtedness if Lender
so requests, any notes or credit agreements now or hereafter evidencing any
debts or obligations of Borrower to Guarantor shall bemarked with a legend that
the same are subject to this Guaranty and shall be delivered to Lender.
FURTHER ASSURANCES. ▇▇▇▇▇▇▇▇▇ agrees, and ▇▇▇▇▇▇ hereby is authorized, in the
name of Guarantor, from time to time to execute and file financing statements
and continuation statements and to execute such other documents and to take such
other actions as Lender dooms necessary or appropriate to perfect, preserve and
enforce its rights under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty: Amendments. This Guaranty, together wilh any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Guaranty. No alteration of or amendment to this
Guaranty shall be effective unless given in writing and signod by trie parly or
parties sought to be charged or bound by the alteration or amendment,
COMMEHCIAL GUARANTY
Loan No (Continued)
Applicable Law- This Guaranty has bean dallvered to Lender and accepted by
▇▇▇▇▇▇ in tha State of New Jeraey. If there is a lawsuit, ▇▇▇▇▇▇▇▇▇ agrees upon
▇▇▇▇▇▇'s request to submit to the jurisdiction of the courts of Ocean County,
State of New Jersey. ▇▇▇▇▇▇ and Guarantor hereby waive that right to any jury
trial in any action, proceeding, or counterclaim brought by either Lender or
Guarantor against the other. This Guaranty shall be governed by and construed in
accordance with the laws of the State of New Jersey.
Attorneys' Fees; Expense. ▇▇▇▇▇▇▇▇▇ agrees to pay upon demand all of ▇▇▇▇▇▇'s
costs and expenses, including attorneys' fees and Lenders legal expenses,
incurred in connection with the enforcement of this Guaranty. Lender may pay
someone else to help enforce this Guaranty, and Guarantor shall pay the costs
and expenses of such enforcement. Costs and expenses include ▇▇▇▇▇▇'s attomays'
fees and legal expenses whether or not there is a lawsuit, including attorneys'
feos and legal expenses tor bankruptcy procoadings (and including efforts to
modify or vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Guarantor also shall pay all court costs and
such additional fees as may be directed by the court.
Notice. All notices required to be given by either party to the other under this
Guaranty shall be in writing, may be sent by telefacsimile (unlass otherwise
required by taw), and, except for revocation notices by Guarantor, shall be
effective when actually delivered or when deposited with a nationally recognizad
overnight courier, or when deposited in the United States mail, first class
postage prepaid, addressed to the party to whom (he notice is to ba given at the
address shown above or to such olher addresses as either party may designate to
lha other in writing all revocation notices by Guarantor shall bo in writing and
shall be effective only upon delivery to Lender as provided above in the section
titled "DURATION OF GUARANTY." If there is more than one Guarantor, notice to
any Guarantor will constitute notice to all Guarantors. For notice purposes.
▇▇▇▇▇▇▇▇▇ agrees to keep ▇▇▇▇▇▇ informed at all times of Guarantor's current
address.
Interpretation. In all cases where there is more than one Borrower or Guarantor,
then all words used in this Guaranty in the singular shall be deemed to have
been used in the plural where the context and construction so require, and where
there is more than one Borrower named in this Guaranty or when this Guaranty is
executed by more than one Guarantor, the words "Borrower" and "Guarantor-
respectively shall mean all and any one or more of them. The words 'Guarantor,"
'Borrower," and "Lender" include the heirs, succassors, assigns, and transferaas
of each of them- Caption headings in this Guaranty are for convenience purposes
only and are not to be used to interpret or define tha provisions of this
Guaranty, If a court of competent jurisdiction finds any provision of this
Guaranty to be invalid or unenforceable as lo any person or circumstance, such
finding shall not render that provision invalid or unenforceable as to any other
persons or circumstances, and all provisions of this Guaranty in all other
respects shall remain valid and enforceable. If any one or more of Borrower or
Guarantor are corporations or partnerships, It is not necessary for Lender to
inquire into the powers of Borrower or Guarantor or of the officers, directors,
partners, or agents acting or purporting to act on their behalf, and any
Indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed under this Guaranty.
Waiver. Lender shall not be deemed to have waived any rights under this Guaranty
unless such waiver is given in writing and signed by ▇▇▇▇▇▇. No delay or
omission on lhe part of Lender in exercising any right shall operate as a waiver
of such right or any other right. A waiver by ▇▇▇▇▇▇ of a provision of (his
Guaranty 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
Guaranty. No prior waiver by ▇▇▇▇▇▇, nor any course of dealing between ▇▇▇▇▇▇
and Guarantor, shall constitute a waiver of any of Lender's rights or of any of
Guarantor's obligations as to any future transactions. Whenever the consent of
Lender is required under this Guaranty, (he 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.
REQUEST FOR FINANCIALS. Borrower and Guarantors) agrea to provide signed
financial statements in a form satisfactory to the Lender within ninety (90)
days of fiscal year end and tax returns within fifteen (15) days of filing on an
annual basis. Failure to provide updated financial statements and tax returns
shall ba considered as a default of the Note.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT
THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS
GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE
MANNER SET FORTH IN THE SECTION TITLED -DURATION OF GUARANTY." NO FORMAL
ACCEPTANCE BY ▇▇▇▇▇▇ IS NECESSARY TO MAKE THIS GUARANTY
GURANTOR:
Arc Mesa Educators, Inc.
By: _____________________ (SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Signed, acknowledged and delivered in the presence of:
x ___________________________
Witness
x ____________________________
Witness
COMMERCIAL SECURITY AGREEMENT
------------------------------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$750,000.00 04-30-2001 91000
------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicablity
of this document to any particular loan or item.
------------------------------------------------------------------------------------------------------------------------
Borrower: Arc Communications, Inc. (TIN: ) Lender: Sovereign Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ocean Office
Tinton Falls. NJ 07724 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THIS COMMERCIAL SECURITY AGREEMENT is entered into between Arc Communtcationa.
Inc. (referred to below as 'Grantor"); and Sovereign Bank (referred to below as
"Lender"). For valuable consideration, Grantor grants to Lender a security
interest in the Collatarel to aecure the Indebtedness and agrees that ▇▇▇▇▇▇
shall have the rights stated in this Agreement with respect to the Collateral,
in addition to all other rights which Lendor may hava by law.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this 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 The word "Agreement means this Commercial 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.
Collateral. The word "Collateral" means the following described property of
Grantor, whether now owned or hereafter acquired, whether now existing or
hereafter arising, and wherever located
Accounts Receivables
In addition, the word "Collateral" means all the following. whether now owned or
hereafter acquired, whather 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 properly described above.
(b) All products and produce of any of the property described in this
Collataral section.
(c) All accounts, general intangibles, instruments, rents, moniea.
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) Ail 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 include without
limitation any of the Events of Default set forth below in the section titled
"Events of Default."
Grantor. The word "Grantor" means Arc Communications, Inc., its successors and
assigns
Guarantor. The word "Guarantor" means and includes without limitation each and
all of the guarantors, sureties, and accommodation parties in connection with
the Indebtedness.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced by the
Note, including all principal and interest, together with all other indebtedness
and costs and expenses for which Grantor is responsible under this Agreement or
under any of the Related Documents.
Lender. Tha word "Lender" means Sovereign Bank, its successors and assigns.
Note. The word "Note" maans the note or credit agreeent dated __.___________, in
the principal amount of $750,000.00 from Arc Communications. Inc. to Lender,
together with all renewals of, extensions of, modificatlons of, refinancings of,
consolidations of and substitutions for the note or credit agreement.
Related Documents. The words "Related Documents" mean and include without
limitation all promissory notes, credit agreemenis, 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.
RIGHT OF SETOFF. Grantor hereby grants ▇▇▇▇▇▇ a contractual security interest in
and hereby assigns, conveys, delivers, pledges, and transfers all of Grantor's
right, title and interest in and to Grantor's accounts with ▇▇▇▇▇▇ (whether
checking, savings, or some other account), including all accounts held jointly
with someone else and all accounts Grantor may open in the future, excluding,
however, all IRA and ▇▇▇▇▇ accounts, and all trust accounts for which the grant
of a security interest would be prohibited by law. Grantor authorizes ▇▇▇▇▇▇, to
the extent permitted by applicable law, to charge or setoff all indebtedness
against any and all such accounts.
OBLIGATIONS OF GRANTOR. Qrantor warrants and covenants to Lender as follows:
Perfection of Security Interest. ▇▇▇▇▇▇▇ agrees to execute such financing
statements and to take whatever other actions are requested by ▇▇▇▇▇▇ to perfect
and continue ▇▇▇▇▇▇'s security interest in the Collataral. Upon request of
▇▇▇▇▇▇, Grantor will deliver to Lender any and all of the documents evidencing
or constituting the Collateral, and Grantor will note ▇▇▇▇▇▇'s Interest upon any
and all chattel paper if not delivered to Lender for possession by ▇▇▇▇▇▇,
Grantor hereby appoints ▇▇▇▇▇▇ 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 Lenders sacurity 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.
Thti is a continuing Security agreement and will continue in effect even though
all or any part of the indebtendess is paid in full and even though for a period
of time Grantor may not be indebted to Lender.
No Violation. The execution and delivery of this Agreement will not violate
any law or agreement governing Grantor or to which Grantor ia a party, and its
certificate or articles of incorporation and bylaws do not prohibit any term or
condition of this Agreement.
COMMERCIAL SECURITY AGREEMENT
Loan No (Continued)
Enforceability of Collateral. To the extent the Collateral consists of accounts,
chattel paper, or general intangibles, tha 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 obligated on the Collateral have authority and capacity
to contract and are in fact obligated as they appear to be on the Collateral.
Location of the Collateral. Grantor, upon request of 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 (or to the extent the
Collateral consists of intangible property such as accounts, the recorda
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 New
Jersey, without the prior written consent of Lender.
Transactions Involving Collateral. Except for inventory sold or accounts
collected in the ordinary course of Grantor's business, Grantor shall not selll,
offer to sell, or otherwise transfer or dispose of the Collateral. While Grantor
is not in default under this Agreement. Grantor may selll 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 ▇▇▇▇▇▇▇'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,
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 ▇▇▇▇▇▇, 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 it holds good and
marketable title to the Collateral, free and clear of all liens and encumbrances
except for the lien of this Agreement. No financing statement covering any of
tha 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 ▇▇▇▇▇▇'s rights in the Collateral
against the claims and demands of all other persons.
Collateral Schedules and Locations. Insofar as the Collateral consists of
inventory, 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 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. 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 othar 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 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 ▇▇▇▇▇▇'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 daposit 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 ▇▇▇▇▇▇ and shall satisfy any final
adverse judgment before enforcement against the Collateral. Grantor shall name
▇▇▇▇▇▇ as an additional obligee under any surety bond furnished in the contest
proceedings.
Compliance With Governmental Requirementa. Grantor shall 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, ordinanca
or regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as ▇▇▇▇▇▇'s interest in the Collateral, in ▇▇▇▇▇▇'s
opinion, is not jeopardized.
Hazardous Substances. Grantor represents and warrants that 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 ("▇▇▇▇"), tha Hazardous Materials Transportation Act.
49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act. 42
U.S.C. Section 6901, et seq. the New Jersey Industrial Site Recovery Act, NJSA
Section 13:1K-6 (ISRA"), tha New Jersey Spill Compensation and Control Act, NJSA
58:10-2311, 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.
Maintanance of Casualty Iniurance. Grantor shall procure 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 ▇▇▇▇▇▇, will deliver to Lender from time to time the
policies or certificates of Insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at least
thirty (30) days' prior written notice to ▇▇▇▇▇▇ and not including any
disclaimer of the insurer's liability for failure to give such a notice. Each
insurance policy also shall Include an endorsernant providing that coverage in
favor of ▇▇▇▇▇▇ 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 requira. If
Grantor at any time fails to obtain or maintain any insurance as required under
this Agreement, Lender may (but shall not bo obligated to) obtain such insurance
as Louder deems appropriate, including if it so chooses "single interest
insurance," which will cover only ▇▇▇▇▇▇'s interest in the Collateral.
COMMERCIAL SECURITY AGREEMENT
Loan No (Continued)
Application of Insurance Proceeds. Grantor shall promptly 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 at 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, Lender shall, upon satisfactory proof of
expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost
of repair or rastoration. 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.
lnsurance Reerves. Lender may require Grantor to maintain with Lender reserves
for payment of insurance premiums, which reserves shall be created by monthly
payments from Grantor of a sum estimated by Lender to be sufficient to produce,
at least fifteen (15) days before the premium due date, amounts at least equal
to the insurance premiums to be paid. If fifteen (15) days befare payment is
due, the reserve funds are insufficient, Grantor shall upon demand pay any
deficiency to Lender. The reserve funds shall be held by Lender as a general
deposit and shall constitute a non-interest-bearing account which Lender may
satisfy by payment of the Insurance premiums required to be paid by Grantor as
they become due. Lender does not hold the reserve funds in trust for Grantor,
and ▇▇▇▇▇▇ is not the agent of Grantor for paymant of the insurance premiums
required to ba paid by Grantor. The responsibility hor the payment of premiums
shall remain Grantor's sole responsibility.
Insurance Reporta. Grantor, upon request of ▇▇▇▇▇▇, shall 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.
▇▇▇▇▇▇▇'S RIGHT TO POSSESSION. Until default, 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. If
Lender at any time has possession of any Collateral, whether betore 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 ▇▇▇▇▇▇'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 Lake 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.
EXPENDITURES BY ▇▇▇▇▇▇. If not discharged or paid when due, Lender may (but
shall not bo obligated to) discharge or pay any amounts required to be
dischargod 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 ba
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 tha 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 ▇▇▇▇▇▇'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 term 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
remedias to which ▇▇▇▇▇▇ may be entitled upon the occurrence of an Event of
Default.
EVENTS OF DEFAULT. Each of the following shall constitute an Event ot Default
undar this Agreement:
Default on indebtedness. Failure o( Grantor to make any payment when due on
the Indebtedness.
0ther Dafault. Failure of Grantor lo comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement or in any
of the Related Documents or in any other agreemant between Lender and
Grantor.
Default In Favor of Third Parties. Should Borrower or any Grantor default
under any loan, extension of ▇▇▇▇▇▇, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Borrower's property or Borrower's or any
Grantor's ability to repay the Loans or perform their respective obligations
under this Agreement or any of the Related Documents..
False Statements. Any warranty, representation or statement made or furnished
to Lender by or on behalf of Grantor under this Agreement, the Note or the
Related Documents is false or misleading in any material respect, either now
or at the time made or furnished.
Defective Collaterallzatlon. This Agreement or any of the Related Documenis
ceases to be in full force and effect (including failure of any collateral
documants to create a valid and perfected security interest or lien) at any
time and for any reason.
Insolvency. The dissolution or termination of ▇▇▇▇▇▇▇'s existence as a going
business, the insolvency of Grantor, the appointment of a receiver for any
part of Grantor'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.
Creditor or Forefeiture Procedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Grantor or by any governmental agency
against the Collateral or any other collateral securing the Indebtedness.
This includes a garnishment ot any of Grantor's deposit accounts with ▇▇▇▇▇▇.
However, this Event of Default shall not apply if there is a good faith
dispute by Grantor as to the validity or reasonableness of the claim which is
the basis of the creditor or forfeiture proceeding and if Grantor gives
▇▇▇▇▇▇ written notice of the creditor or forfeiture proceeding and deposits
with Lerider 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 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.
Adverse Change. A material adverse change occurs in Grantor's financial
condition, or ▇▇▇▇▇▇ believes the prospect of payment or performance of the
Indebtedness is impaired.
Insecurity. Lender, in good faith, deems itself insecure.
Right to Cure. If any default, other than a Default on indebtedness, is
curable and if Grantor has not been given a prior notice of a breach of the
same provision of this Agreement, it may be cured (and no Event of Default
will have) occurred) If Grantor, after ▇▇▇▇▇▇ sends written notice demanding
Cure of such default, (a) cures the default within fifteen (15) days; or (b).
if the cure requires more than fifteen (15) days, immediately initiates steps
which Lender deems in ▇▇▇▇▇▇'s sole discretion to be sufficient to cure the
default and thereafter continues and completes all reasonable and necessary
steps sufficient to produce compliance as soon as reasonably practical.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereaftor, Lender shall have all the rights of
COMMERCIAL SECURITY AGREEMENT
(Continued)
Loan No page 4
--------------------------------------------------------------------------------
A secured party under the New Jersey Uniform Commercial Code. In addition and
without limitation. Lender may exercise arty one or more of the following
rights and remedies
Accelerate Indebtedness. ▇▇▇▇▇▇ may declare the entire Indebtedness,
including any prepayment penalty, which Grantor would be required to
pay, Immediately Clue and payable, without notice.
Assemble Collateral. Lender may require Grantor to deliver to Lender all
or any portion of the Collateral and any and all certificates of title
and other documents relating in the Collateral Lender may require
Grantor to assemble the Collateral and make it available lo Lender at a
place to be designated by 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. ▇▇▇▇▇▇▇ agrees Lender may take
such other goods, provided that ▇▇▇▇▇▇ makes reasonable efforts to
return them to Grantor after repossession.
Sell the Collateral. Lender shall have full power to sell, 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 lo
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 o< reasonabia 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 law. Lender
shall have the following rights and remedies regarding the appointment
of a receiver, (a) Lender may have a receiver appointed as a manor 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 Account. Lender, either itself or 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 there from and ho)d 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, chooses in action, or similar
property, Lender may demand, collect, receipt for, settle, compromise,
adjust, sue 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 iSrantor: 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 lo make payments directly to Lender.
Other Rights and Remedies, Lender shall have all the rights 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 ▇▇▇▇▇▇'s rights and remedies, 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 ▇▇▇▇▇▇ to pursue any remedy shall not exclude
pursuit of any other remedy, and an election to make expenditure or to
take action to perform an obligation of Grantor under this Agreement,
after ▇▇▇▇▇▇▇'s failure to perform, shall not affect ▇▇▇▇▇▇'s right to
declare a default and to exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a
part of this Agreement;
Amendments. This Agreement, together with any Related 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 affective 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 and accepted
by Lender in the State of New Jersey. If there is a lawsuit. ▇▇▇▇▇▇▇
agrees upon ▇▇▇▇▇▇'s request to submit to the jurisdiction of the courts
of the State of New Jersey. ▇▇▇▇▇▇ and Grantor hereby waive the right to
any jury trial In any action, proceeding, or counterclaim brought by
either ▇▇▇▇▇▇ or Grantor against the other. This Agreement shall be
governed by and construed in accordance with the laws of the Stat8 of
New Jersey.
Attorneys' Fees: Expenses. ▇▇▇▇▇▇▇ agrees to pay upon demand all of
▇▇▇▇▇▇'s costs and expenses, including attorneys' fees and ▇▇▇▇▇▇'s
legal expenses, incurred in connection with the enforcement of this
Agreement, Lender may pay someone else to help enforce this Agreement,
and Grantor shall pay the costs and expenses of such enforcement. Costs
and expenses Include ▇▇▇▇▇▇'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 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 for convenience purposes only and
are not to be used to Interpret or define the provisions of this
Agreement.
Notices. All notices required to be given under this Agreement shall be
given in writing, may be sent by telefacsimile (unless otherwise
required by law), and shall be effective when actually delivered or when
deposited with a nationally recognized overnight courier or deposited in
the United Stales mail, first class, postage prepaid, addressed to the
party to whom the notice is to be given at the address shown above. Any
party may change its address for notices under this Agreement by giving
formal written notice to the other parties, specifying that the purpose
of the notice is to change the party's address. To the extent permitted
by applicable law, if there is more than one Grantor, notice to any
Grantor will constitute notice to all Grantors. For notice purposes.
Grantor will keep ▇▇▇▇▇▇ informed at all times of Grantor's current
address(es).
No Joint Venture or Partnership. The relationship of Grantor arid Lender
created by this Agreement is strictly that of debtor-creditor, and
nothing contained in this Agreement or in any of the Related Documents
shall be deemed or construed to create a partnership o" Joint venture
between Grantor and Lender.
Power of Attorney. Grantor hereby appoints Lender as its true and lawful
attomey-in-fact, irrevocably, with full power of substitution to do the
following: (a) to demand, collect, receive, receipt for, sue and recover
all sums of money or other property which may now or hereafter become
clue, 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 (or 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 ▇▇▇▇▇▇.
Severabitity. if a court of competent jurisdiction finds any provision
of this Agreement to be invalid or unenforceable as to any person or
>
COMMERCIAL SECURITY AGREEMENT
(Continued)
Loan No Page 5
--------------------------------------------------------------------------------
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 modfied to be within the
limits of enforceability or validity; however, if the offending
provision cannot be 30 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 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 ▇▇▇▇▇▇.
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
▇▇▇▇▇▇, nor any course of dealing between ▇▇▇▇▇▇ 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.
GRANTOR ACXNOWLEDQES HAVING HEAD ALL THE PROVISIONS OF TMIS COMMERCIAL SECURITY
AGREEMENT AND GRANTOR AGHEES TO ITS TERMS. THIS AGREEMENT IS
DATED_____________________________.
GRANTOR:
Arc Communications, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President (SEAL)
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
ATTEST
/s/ ( Corporate Seal )
-------------------------------------
Secretary or Assistant Secretary
LENDER:
Sovereign Bank
By:
-------------------------------------------
Authorized Officer
This FINANCING STATEMENT IS presented to a filing officer for filing Maturity date (if any):
pursuant to the Uniform Commercial Code.
------------------------------------ ---------- ------------------------------------------------------- ---------------------------
FOR OFFICE USE ONLY Debtor(s) Name (Last Name, First) Complete Address Maturity date (if any)
----------------------
Arc Conimunications, lnc. ---------------------------
788 Shrewsbury Avenue FOR OFFICE USE ONLY
Tinton Falls, NJ 07724
-------------------------------------------------------
Secured Party(ies) and Complete Address
Sovereign Bank
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------
Assignee(s) of Secured Party and Complete Address
------------------------------------------------------------------------------------------------------------------------------------
This Financing Statement covers the following types (or items) of property:
Accounts Receivables: whether any of the foregoing is owned now or acquired
later; all accessions, additions, replacements, and substitutions relating to
any of the foregoing; all records of any kind relating to any of the foregoing;
all proceeds relating to any of the foregoing (including insurance, general
intangibles and accounts proceeds).
This Financing Statement is to be recorded in the real estate records.
------------------------------------------------------------------------------------------------------------------------------------
When collateral is copy or fixtures complete this portion of form
a. Description of real estate (Sufficient to identify property)
b. Name and complete address of record owner.
------------------------------------------------------------------------------------------------------------------------------------
a. (X) Proceeds of Collateral are also covered. b. (X) Products of Collateral are also covered. No. of additional sheets
presented ( )
------------------------------------------------------------------------------------------------------------------------------------
( ) Filed with Register of Deeds and Mortgages of ____________________________ County. (X) Secretary of State
( ) Filed with County Clerk___________________________________________________ County.
------------------------------------------------------------------------------------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies) or Assignee(s)
TERMIMATION STATEMENT
This statement of termination of financing is presented to a Filing Officer for filing pursuant of the Uniform Commercial Code. The
secured Party certifies that the Secured Party no longer claims a security interest under the fiancing statemtne bearing the file
number above
----------------------------------------------------
Dated: 20
---------------------------- ------ ----------------------------------------------------
(signature(s) of Secured Party or Assignee or
Record-Not valid until signed)
FILING OFFICER COPY -- This form of statement is approved by the Secretary of State of New Jersey.
STANDARD FORM UNIIFORM COMMERCIAL CODE--FORM UCC-1. (Rev. 9/81)
2
This FINANCING STATEMENT IS presented to a filing officer for filing pursuant to the Uniform Commercial Code.
------------------------------------ ---------- ------------------------------------------------------- ---------------------------
FOR OFFICE USE ONLY Debtor(s) Name (Last Name, First) Complete Address Maturity date (if any)
----------------------
(Maturity data (it any): Arc Conimunications, lnc. ---------------------------
788 Shrewsbury Avenue FOR OFFICE USE ONLY
Tinton Falls, NJ 07724
-------------------------------------------------------
Secured Party(ies) and Complete Address
Sovereign Bank
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------
Assignee(s) of Secured Party and Complete Address
------------------------------------------------------------------------------------------------------------------------------------
This Financing Statement covers the following types (or items) of property:
Accounts Receivables: whether any of the foregoing is owned now or acquired
later; all accessions, additions, replacements, and substitutions relating to
any of the foregoing; all records of any kind relating to any of the foregoing;
all proceeds relating to any of the foregoing (including insurance, general
intangibles and accounts proceeds).
This Financing Statement is to be recorded in the real estate records.
------------------------------------------------------------------------------------------------------------------------------------
When collateral is copy or fixtures complete this portion of form
a. Description of real estate (Sufficient to identify property)
b. Name and complete address of record owner.
------------------------------------------------------------------------------------------------------------------------------------
a. (X) Proceeds of Collateral are also covered. b. (X) Products of Collateral are also covered. No. of additional sheets
presented ( )
------------------------------------------------------------------------------------------------------------------------------------
( ) Filed with Register of Deeds and Mortgages of ____________________________ County. (X) Secretary of State
( ) Filed with County Clerk___________________________________________________ County.
------------------------------------------------------------------------------------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies) or Assignee(s)
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President Sovereign Bank
FILING OFFICER COPY -- This form of statement is approved by the Secretary of State of New Jersey.
STANDARD FORM UNIIFORM COMMERCIAL CODE--FORM UCC-1. (Rev. 9/81)
1
This FINANCING STATEMENT IS presented to a filing officer for filing Maturity date (if any):
pursuant to the Uniform Commercial Code.
------------------------------------ ---------- ------------------------------------------------------- ---------------------------
FOR OFFICE USE ONLY Debtor(s) Name (Last Name, First) Complete Address Maturity date (if any)
----------------------
Arc Conimunications, lnc. ---------------------------
788 Shrewsbury Avenue FOR OFFICE USE ONLY
Tinton Falls, NJ 07724
-------------------------------------------------------
Secured Party(ies) and Complete Address
Sovereign Bank
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------
Assignee(s) of Secured Party and Complete Address
------------------------------------------------------------------------------------------------------------------------------------
This Financing Statement covers the following types (or items) of property:
Accounts Receivables: whether any of the foregoing is owned now or acquired
later; all accessions, additions, replacements, and substitutions relating to
any of the foregoing; all records of any kind relating to any of the foregoing;
all proceeds relating to any of the foregoing (including insurance, general
intangibles and accounts proceeds).
This Financing Statement is to be recorded in the real estate records.
------------------------------------------------------------------------------------------------------------------------------------
When collateral is copy or fixtures complete this portion of form
a. Description of real estate (Sufficient to identify property)
b. Name and complete address of record owner.
------------------------------------------------------------------------------------------------------------------------------------
a. (X) Proceeds of Collateral are also covered. b. (X) Products of Collateral are also covered. No. of additional sheets
presented ( )
------------------------------------------------------------------------------------------------------------------------------------
( ) Filed with Register of Deeds and Mortgages of ____________________________ County. (X) Secretary of State
( ) Filed with County Clerk___________________________________________________ County.
------------------------------------------------------------------------------------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies) or Assignee(s)
TERMIMATION STATEMENT
This statement of termination of financing is presented to a Filing Officer for filing pursuant of the Uniform Commercial Code. The
secured Party certifies that the Secured Party no longer claims a security interest under the fiancing statemtne bearing the file
number above
----------------------------------------------------
Dated: 20
---------------------------- ------ ----------------------------------------------------
(signature(s) of Secured Party or Assignee or
Record-Not valid until signed)
FILING OFFICER COPY -- This form of statement is approved by the Secretary of State of New Jersey.
STANDARD FORM UNIIFORM COMMERCIAL CODE--FORM UCC-1. (Rev. 9/81)
2
This FINANCING STATEMENT IS presented to a filing officer for filing Maturity date (if any):
pursuant to the Uniform Commercial Code.
------------------------------------ ---------- ------------------------------------------------------- ---------------------------
FOR OFFICE USE ONLY Debtor(s) Name (Last Name, First) Complete Address Maturity date (if any)
----------------------
Arc Conimunications, lnc. ---------------------------
788 Shrewsbury Avenue FOR OFFICE USE ONLY
Tinton Falls, NJ 07724
-------------------------------------------------------
Secured Party(ies) and Complete Address
Sovereign Bank
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------
Assignee(s) of Secured Party and Complete Address
------------------------------------------------------------------------------------------------------------------------------------
This Financing Statement covers the following types (or items) of property:
Accounts Receivables: whether any of the foregoing is owned now or acquired
later; all accessions, additions, replacements, and substitutions relating to
any of the foregoing; all records of any kind relating to any of the foregoing;
all proceeds relating to any of the foregoing (including insurance, general
intangibles and accounts proceeds).
This Financing Statement is to be recorded in the real estate records.
------------------------------------------------------------------------------------------------------------------------------------
When collateral is copy or fixtures complete this portion of form
a. Description of real estate (Sufficient to identify property)
b. Name and complete address of record owner.
------------------------------------------------------------------------------------------------------------------------------------
a. (X) Proceeds of Collateral are also covered. b. (X) Products of Collateral are also covered. No. of additional sheets
presented ( )
------------------------------------------------------------------------------------------------------------------------------------
( ) Filed with Register of Deeds and Mortgages of ____________________________ County. (X) Secretary of State
( ) Filed with County Clerk___________________________________________________ County.
------------------------------------------------------------------------------------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies) or Assignee(s)
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President Sovereign Bank
FILING OFFICER COPY -- This form of statement is approved by the Secretary of State of New Jersey.
STANDARD FORM UNIIFORM COMMERCIAL CODE--FORM UCC-1. (Rev. 9/81)
3
This FINANCING STATEMENT IS presented to a filing officer for filing pursuant to
the Uniform Commercial Code.
------------------------------------ ---------- ------------------------------------------------------- ---------------------------
FOR OFFICE USE ONLY Debtor(s) Name (Last Name, First) Complete Address Maturity date (if any)
----------------------
(Maturity data (it any): Arc Conimunications, lnc. ---------------------------
788 Shrewsbury Avenue FOR OFFICE USE ONLY
Tinton Falls, NJ 07724
-------------------------------------------------------
Secured Party(ies) and Complete Address
Sovereign Bank
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------
Assignee(s) of Secured Party and Complete Address
------------------------------------------------------------------------------------------------------------------------------------
4
This FINANCING STATEMENT IS presented to a filing officer for (Maturity data (it any):
filing pursuant to the Uniform Commercial Code.
------------------------------------ ---------- ------------------------------------------------------- ---------------------------
FOR OFFICE USE ONLY Debtor(s) Name (Last Name, First) Complete Address Maturity date (if any)
----------------------
Arc Conimunications, lnc. ---------------------------
788 Shrewsbury Avenue FOR OFFICE USE ONLY
Tinton Falls, NJ 07724
-------------------------------------------------------
Secured Party(ies) and Complete Address
Sovereign Bank
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------
Assignee(s) of Secured Party and Complete Address
------------------------------------------------------------------------------------------------------------------------------------
This Financing Statement covers the following types (or items) of property:
Accounts Receivables: whether any of the foregoing is owned now or acquired
later; all accessions, additions, replacements, and substitutions relating to
any of the foregoing; all records of any kind relating to any of the foregoing;
all proceeds relating to any of the foregoing (including insurance, general
intangibles and accounts proceeds).
This Financing Statement is to be recorded in the real estate records.
------------------------------------------------------------------------------------------------------------------------------------
When collateral is copy or fixtures complete this portion of form
a. Description of real estate (Sufficient to identify property)
b. Name and complete address of record owner.
------------------------------------------------------------------------------------------------------------------------------------
a. (X) Proceeds of Collateral are also covered. b. (X) Products of Collateral are also covered. No. of additional sheets
presented ( )
------------------------------------------------------------------------------------------------------------------------------------
( ) Filed with Register of Deeds and Mortgages of ____________________________ County. (X) Secretary of State
( ) Filed with County Clerk___________________________________________________ County.
------------------------------------------------------------------------------------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies) or Assignee(s)
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President Sovereign Bank
FILING OFFICER COPY -- This form of statement is approved by the Secretary of State of New Jersey.
STANDARD FORM UNIIFORM COMMERCIAL CODE--FORM UCC-1. (Rev. 9/81)
5