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UNION EXHIBIT 10.23(ii)
BANK OF
CALIFORNIA
SECURITY AGREEMENT
This Agreement executed at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, on August 30, 1999, by UpRight, Inc. (herein called "Debtor").
As security for the payment and performance of all of Debtor's obligations to
UNION BANK OF CALIFORNIA, N.A. (herein called "Bank"), irrespective of the
manner in which or the time at which such obligations arose or shall arise, and
whether direct or indirect, alone or with others, absolute or contingent, Debtor
does hereby grant a continuing security interest to Bank in all personal
property (herein called "Collateral"), whether now or hereafter owned or in
existence described as
A. MOTOR VEHICLES:
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NEW NUMBER
OR OF
YEAR TRADE NAME BODY TYPE SERIAL NUMBER USED CYLINDERS
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B. OTHER:
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"Collateral", as defined in Schedule 1 hereto, all terms of which are
incorporated herein by reference.
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The Collateral described above will be maintained at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇
▇▇▇▇▇, and any other location.
C. ALL PERSONAL PROPERTY OF ANY KIND WHICH IS DELIVERED TO OR IN THE
POSSESSION OR CONTROL OF BANK OR ITS AGENTS;
D. PROCEEDS OF ANY OF THE ABOVE-DESCRIBED PROPERTY. The grant of a security
interest in proceeds does not imply the right of Debtor to sell or
dispose of any Collateral described herein without the express consent
in writing by Bank.
The maximum amount of indebtedness to be secured at any one time is unlimited
unless an amount is inserted here N/A ($N/A).
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maximum amount
(To be completed only if an accommodation)______________________________________
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OWNER(S) OF COLLATERAL
is executing this Agreement as an Accommodation Debtor only and his liability is
limited to the security interest created in Collateral described herein. The
Debtor being accommodated is N/A.
All terms and conditions on the reverse side hereof are incorporated herein as
though set forth in full.
UpRight, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ Evulich
Vice President
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AGREEMENT
1. The term credit is used throughout this Agreement in its broadest and most
comprehensive sense. Credit may be granted at the request of any one Debtor
without further authorization or notice to any other Debtor, including an
Accommodation Debtor. Collateral shall be security for all obligations of Debtor
to Bank in accordance with the terms and conditions herein.
2. Debtor will: (a) execute such Financing Statement and other documents and do
such other acts and things, all as Bank may from time to time require, to
establish and maintain a valid security interest in Collateral, including
payment of all costs and fees in connection with any of the foregoing when
deemed necessary by Bank; (b) pay promptly when due all indebtedness to Bank;
(c) furnish Bank such information concerning Debtor and Collateral as Bank may
from time to time request, including but not limited to current financial
statements; (d) keep Collateral separate and identifiable and at the location
described herein and permit Bank and its representatives to inspect Collateral
and/or records pertaining thereto from time to time during normal business
hours; (e) not sell, assign or create or permit to exist any lien on or security
Interest in Collateral in favor of anyone other than the Bank unless Bank
consents thereto in writing and at Debtor's expense upon Bank's request remove
any unauthorized lien or security interest and defend any claim affecting the
collateral; (f) pay all charges against Collateral prior to delinquency
including but not limited to taxes, assessments, encumbrances, insurance and
diverse claims, and upon Debtor's failure to do so Bank may pay any such charge
as it deems necessary and add the amount paid to the indebtedness of Debtor
hereunder; (g) reimburse Bank for any expenses including but not limited to
reasonable attorneys' fees and legal expenses Incurred by Bank in seeking to
protect, collect or enforce any rights in Collateral; (h) when required, provide
insurance in form and amounts and with companies acceptable to Bank and when
required assign the policies or the rights thereunder to Bank; (i) maintain
Collateral in good condition and not use Collateral for any unlawful purpose;
(j) at its own expense, upon request of Bank, notify any parties obligated to
Debtor on any Collateral to make payment to Bank and Debtor hereby irrevocably
grants Bank power of attorney to make said notifications and collections; (k)
and does hereby authorize Bank to perform any and all acts which Bank in good
▇▇▇▇▇ ▇▇▇▇▇ necessary for the protection and preservation of Collateral or its
value or Bank's security interest therein, including transferring any Collateral
Into its own name and receiving the income thereon as additional security
hereunder. Bank may not exercise any right under any corporate security which
might constitute the exercise of control by Bank so as to make any such
corporation an affiliate of Bank within the meaning of the banking laws until
after default.
3. The term default shall mean the occurrence of any of the following events:
(a) non-payment of any indebtedness when due or non-performance of any
obligation when due, whether required hereunder or otherwise; (b) deterioration
or impairment of the value of Collateral; (c) non-performance by Debtor under
this Agreement, default by Debtor of any other agreements with Bank dealing with
the extension of credit or with debt owing Bank or any misrepresentation of
Debtor or Its representative to Bank whether or not contained herein; (d) a
change in the composition of any Debtor which is a business entity; or (e)
belief by Bank in good faith that there exists, or the actual existence of, any
deterioration or impairment in the, ability of Debtor to meet its obligations to
Bank.
4. Whenever a default exists, Bank, at its option may: (a) without notice
accelerate the maturity of any part or all of the secured obligations and
terminate any agreement for the granting of further credit to Debtor; (b) sell,
lease or otherwise dispose of Collateral at public or private sale; unless
Collateral is perishable and threatens to decline speedily in value or is a type
customarily sold on a recognized market, Bank will give Debtor at least five (5)
days prior written notice of the time and place of any public sale or of the
time after which any private sale or any other intended disposition may be made;
(c) transfer any Collateral into its own name or that of Its nominee; (d) retain
Collateral in satisfaction of obligations secured hereby, with notice of such
retention sent to Debtor as required by law; (e) notify any parties obligated on
any Collateral consisting of accounts, instruments, chattel paper, chooses in
action or the like to make payment to Bank and enforce collection of any
Collateral herein; (f) require Debtor to assemble and deliver any Collateral to
Bank at a reasonable convenient place designated by Bank; (g) apply all sums
received or collected from or on account of Collateral including the proceeds of
any sales thereof to the payment of the costs and expenses incurred in
preserving and enforcing rights of Bank Including but not limited to reasonable
attorneys' fees, and Indebtedness secured hereby in such order and manner as
Bank in Its sole discretion determines; Bank shall account to Debtor for any
surplus remaining thereafter, and shall pay such surplus to the party entitled
thereto, including any second secured party who has made a proper demand upon
Bank and has furnished proof to Bank as requested in the manner provided by law;
in like manner, Debtor, unless an Accommodation Debtor only, agrees, to pay to
Bank without demand any deficiency after any Collateral has been disposed of and
proceeds applied as aforesaid; and (h) exercise its banker's lien or right of
setoff In the same manner as though the credit were unsecured. Bank shall have
all the rights and remedies of a secured party under the Uniform Commercial Code
of California in any jurisdiction where enforcement is sought, whether in said
state or elsewhere. All rights, powers and remedies of Bank hereunder shall be
cumulative and not alternative. No delay on the part of Bank In the exercise of
any right or remedy shall constitute a waiver thereof and no exercise by Bank of
any right or remedy shall preclude the exercise of any other right or remedy or
further exercise of the same remedy.
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5. Debtor waives: (a) all right to require Bank to proceed against any other
person including any other Debtor hereunder or to apply any Collateral Bank may
hold at any time or to pursue any other remedy; Collateral, endorsers or
guarantors may be released, substituted or added without affecting the liability
of Debtor hereunder; (b) the defense of the Statute of Limitations in any action
upon any obligations of Debtor secured hereby; (c) if debtor is an Accommodation
Debtor, all rights under Uniform Commercial Code Section 9112; and (d) any right
of subrogation and any right to participate in Collateral until all obligations
hereby secured have been paid In full.
6. Debtor warrants: (a) that it is or will be the lawful owner of all Collateral
free of all claims, liens or encumbrances whatsoever, other than the security
interest granted pursuant hereto; (b) all information, including but not limited
to financial statements furnished by Debtor to Bank heretofore or hereafter,
whether oral or written, is and will be correct and true as of the date given;
and (c) if Debtor is a business entity, the execution, delivery and performance
hereof are within its powers and have been duly authorized.
7. The right of Bank to have recourse against Collateral shall not be affected
In any way by the fact that the credit is secured by a mortgage, deed of trust
or other lien upon real property.
8. Debtor may terminate this Agreement at any time upon written notice to Bank
of such termination; provided however, that such termination shall not affect
his obligations then outstanding, any extensions or renewals thereof, nor the
security Interest granted herein which shall continue until such outstanding
obligations are satisfied in lull. Such termination shall not affect the
obligations of other Debtors If more than one executes this Agreement.
9. If more than one Debtor executes this Agreement, the obligations hereunder
are joint and several. All words used herein in the singular shall be deemed to
have been used in the plural when the context and construction so require. Any
married persons who sign this Agreement expressly agree that recourse may be had
against his/her separate property for all of his/her obligations to Bank.
10. This Agreement shall inure to the benefit of and bind Bank, its successors
and assigns and each of the undersigned, their respective heirs, executors,
administrators and successors in interest. Upon transfer by Bank of any part of
the obligations secured hereby, Bank shall be fully discharged from all
liability with respect to Collateral transferred therewith.
11. Whenever possible each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but, if any
provision of this Agreement shall be prohibited or Invalid under applicable law,
such provisions shall be ineffective to the extent of such prohibition or
invalidity without Invalidating the remainder of such or the remaining
provisions of this Agreement.
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UNION
BANK OF
CALIFORNIA
SCHEDULE 1
SCHEDULE 1 to that certain Security Agreement dated August 30, 1999 executed by
UpRight, Inc. ("Debtor") in favor of UNION BANK OF CALIFORNIA, N.A.
For value received and in consideration of advances, present and future, and
other obligations, debtor hereby grants Union Bank of California, N.A. a
security interest in all of the following property:
All accounts, deposit accounts, instruments, chattel paper, documents, general
intangibles, inventory, equipment, furniture, and fixtures, now or hereafter
owned or acquired by debtor, all proceeds and insurance proceeds of the
foregoing, all guarantees and other security therefor, and all of debtor's
present and future books and records relating thereto (including computer-stored
information and all software relating thereto) and all contract rights with
third parties relating to the maintenance of any such books, records and
information.