EXHIBIT 10.3
SECURITY AGREEMENT
SECURITY AGREEMENT (this "Agreement"), made this 6th day of October
1997, by and between INTERNATIONAL CUTLERY, LTD., a Delaware corporation (the
"Debtor"), having offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and
SHARP OF FLORIDA, INC., a New York corporation (the "Secured Party"), having
offices at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery hereof, the
Secured Party has provided the Debtor with a $1,300,000 loan (the "Loan"), and
the Debtor has evidenced such Loan by delivering to the Secured Party the
Debtors 7% $1,300,000 senior secured convertible promissory note, due July 31,
2001, payable to the order of Secured Party and dated of even date herewith (the
"Note"); and
WHEREAS, in order to induce the Secured Party to make the Loan evidenced
by the Note, the Debtor has agreed to grant to the Secured Party a first
priority lien and security interest in substantially all of the Debtor's assets
and properties, pursuant to the terms and conditions of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
SECTION 1. DEFINITIONS.
(a) All terms used herein which are defined in Article 1 or Article
9 of the Uniform Commercial Code (the "Code") shall have the meanings given
therein unless otherwise defined in this Agreement. All references to the plural
herein shall also mean the singular and to the singular shall also mean the
plural. All references to the Secured Party and the Debtor pursuant to the
definitions set forth in the recitals hereto, or to any other person herein,
shall include their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns. The words "hereof," "herein,"
"hereunder," "this Agreement" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not any particular
provision of this Agreement and as this Agreement now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced.
(b) In addition to those capitalized terms defined elsewhere in this
Agreement, the following terms shall have the following respective meanings
wherever used in this Agreement:
"Accounts" shall mean all present and future rights of the Debtor to
payment for goods sold or leased, for services rendered, or for loans or other
financial accommodations extended,
whether or not evidenced by instruments or chattel paper, and whether or not
earned by performance.
"Collateral" shall have the meaning set forth in Section 2 below.
"Equipment" shall mean all of the Debtor's now owned and hereafter
acquired equipment, machinery, computers and computer hardware and software
(whether owned or licensed), vehicles, tools, furniture, fixtures, all
attachments, accessions and property now or hereafter affixed thereto or used in
connection therewith, and substitutions and replacements thereof, wherever
located.
"Event of Default" shall have the meaning ascribed thereto in Section 5
of the Note.
"Indebtedness" shall have the meaning ascribed thereto in the Note.
"Inventory" shall mean all of the Debtor's now owned and hereafter
existing or acquired raw materials, work in process, finished goods and all
other inventory of whatsoever kind or nature, wherever located.
"Loan Obligations" shall mean the collective reference to (a) all
principal, interest, collection costs, expenses and other amounts owing or
payable from time to time under the Note, (b) any additional or further amounts
which, pursuant to the Note, the Pledge Agreement and/or this Agreement, may be
deemed part of and/or added to the Loan Obligations, and (c) any other
Indebtedness not contemplated by clauses (a) or (b) above which may hereafter be
owed by the Debtor to the Secured Party; in each case, whether arising before or
after the commencement of any case with respect to the Debtor under the United
States Bankruptcy Code or any similar statute (including, without limitation,
the payment of interest and other amounts which would accrue and become due but
for the commencement of such case).
"Person" or "person" shall have the meaning ascribed thereto in the
Note.
"Records" shall mean all of the Debtor's present and future books of
account of every kind or nature, purchase and sale agreements, invoices, ledger
cards, bills of lading and other shipping evidence, statements, correspondence,
memoranda, credit files and other data relating to the Collateral or any account
debtor, together with the tapes, disks, diskettes and other data and software
storage media and devices, file cabinets or containers in or on which the
foregoing are stored (including any rights of the Debtor with respect to the
foregoing maintained with or by any other Person).
"Security Interests" shall mean the liens and security interests granted
by the Debtor to the Secured Party, and all rights and remedies in respect
thereof, pursuant to this Agreement.
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SECTION 2. THE SECURITY INTERESTS.
In order to secure the due and punctual payment and performance of all
Loan Obligations owing to the Secured Party from time to time, the Debtor hereby
grants to the Secured Party a continuing lien and security interest in, and
hereby assigns to the Secured Party as collateral security, the following
described property and interests of the Debtor, whether now owned or hereafter
acquired or existing, and wherever located (collectively, the "Collateral"):
(a) all Accounts;
(b) all present and future contract rights, general
intangibles (including, but not limited to, tax and duty refunds, registered and
unregistered patents, trademarks (excluding trademarks listed on Schedule 3(l)
of the Note, which trademarks, with the exception of "Cutlery World," are not
currently being used by Debtor), service marks, copyrights, trade names,
applications for the foregoing, trade secrets, goodwill, processes, drawings,
blueprints, customer lists, licenses, whether as licensor or licensee (to the
extent that the granting of the Secured Party's lien and security interest
therein will not cause a termination of such licenses or result in the loss of
the benefits of such licenses to the Debtor), chooses in action and other claims
and existing and future leasehold interests in equipment, real estate and
fixtures, those intangibles set forth in SCHEDULE 1 annexed hereto, and the
right to ▇▇▇ for infringement and/or unauthorized use of any intangibles),
chattel paper, documents, instruments, letters of credit, bankers' acceptances
and guaranties;
(c) all present and future monies, securities, credit
balances, deposits, deposit accounts and other property of the Debtor now or
hereafter held or received by or in transit to the Secured Party or its
affiliates or at any other depository or other institution from or for the
account of the Secured Party, whether for safekeeping, pledge, custody,
transmission, collection or otherwise, and all present and future liens,
security interests, rights, remedies, title and interest in, to and in respect
of Accounts and other Collateral, including, without limitation, (i) rights and
remedies under or relating to guaranties, contracts of suretyship, letters of
credit and credit and other insurance related to the Collateral, (ii) rights of
stoppage in transit, replevin, repossession, reclamation and other rights and
remedies of an unpaid vendor, lienor or secured party, (iii) goods described in
invoices, documents, contracts or instruments with respect to, or otherwise
representing or evidencing, Accounts or other Collateral, including, without
limitation, returned, repossessed and reclaimed goods, and (iv) deposits by and
property of account debtors or other persons securing the obligations of account
debtors;
(d) all Inventory;
(e) all Equipment;
(f) all interests of every kind and description held
or possessed by Debtor in any real property or improvements to real property,
including, without limitation, all fee ownership and/or leasehold interests (to
the extent not prohibited by or requiring consent under Debtor's leases) in real
property or improvements thereto;
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(g) all Records; and
(f) all products and proceeds of the foregoing, in any
form, including, without limitation, insurance proceeds and all claims against
third parties for loss or damage to or destruction of any or all of the
foregoing.
SECTION 3. FILING; FURTHER ASSURANCES.
The Debtor will, at its expense, execute, deliver, file and record (in
such manner and form as the Secured Party shall require), or permit the Secured
Party to file and record, (a) all financing statements, (b) all carbon,
photographic or other reproductions of financing statements or this Agreement
(which shall be sufficient as a financing statement hereunder), (c) all
endorsements to title to any vehicles or other Collateral as may be required in
order to perfect the Security Interests therein, and (d) all specific
assignments or other papers (including, without limitation, specific assignments
in respect of patents, patent applications, trademarks, trademark applications,
copyrights and copyright applications) that may be necessary or desirable, or
that the Secured Party may request, in order to create, preserve, perfect or
validate any Security Interest or to enable the Secured Party to exercise and
enforce its rights hereunder with respect to any of the Collateral. The Debtor
hereby appoints the Secured Party as the Debtor's attorney-in-fact to execute
and file, in the name and on behalf of the Debtor, such additional financing
statements as the Secured Party may request. In addition, in the event and to
the extent that any of Collateral consists of or is represented by instruments
or other evidences of ownership such as would require physical possession of
same in order to perfect the Security Interests therein, the Debtor will
promptly, at its expense, deliver same to the Secured Party, with any necessary
endorsements thereon.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE DEBTOR.
The Debtor hereby represents and warrants as follows:
(a) That the Debtor is the valid and lawful owner of all of the
Collateral, free from any and all adverse liens, security interests or
encumbrances.
(b) That the Debtor has full right, power and authority to
grant to the Secured Party the Security Interests pursuant to the terms of this
Agreement, and that the Security Interests do not conflict with any rights of
any other persons or any commitments of the Debtor to any other persons.
(c) That no financing statement covering any of the Collateral
is on file in any public office, other than (i) financing statements in respect
of any indebtedness which is being repaid out of the proceeds of the Loan (which
financing statements are being terminated and released simultaneously with the
funding of the Loan to the Debtor), and (ii) financing statements filed pursuant
to this Agreement.
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(d) That all additional information, representations and
warranties contained in EXHIBIT A annexed hereto and made a part hereof are
true, accurate and complete on the date hereof.
SECTION 5. COVENANTS OF THE DEBTOR.
The Debtor hereby covenants and agrees as follows:
(a) That the Debtor will defend the Collateral and the
Security Interests against all claims and demands of all persons at any time
claiming any adverse interest therein or thereagainst.
(b) That the Debtor will give written notice thereof to the
Secured Party at least thirty (30) days prior to (i) any change in the location
of the principal office of the Debtor or the office where the Debtor maintains
its books and records pertaining to the Accounts and/or any other Collateral,
(ii) any change in any of the information contained in EXHIBIT A annexed hereto,
and (iii) the movement or location of any Collateral to or at any address other
than as set forth in said EXHIBIT A.
(c) That the Debtor will promptly pay any and all taxes,
assessments and governmental charges upon the Collateral prior to the date that
penalties may attach thereto or same become a lien on any of the Collateral,
except to the extent that such taxes, assessments and charges shall be contested
by the Debtor in good faith and through appropriate proceedings.
(d) That the Debtor will immediately notify the Secured Party
of any event causing a material loss or diminution in the value of the
Collateral, and the amount (or the Debtor's best estimate of the amount) of such
loss or diminution.
(e) That the Debtor will at all times have and maintain
insurance with respect to all insurable Collateral in amounts and of types as
are customarily maintained by other companies of comparable size and type of
business, each of which insurance policies shall name the Secured Party as a
loss payee as its interests may appear. All policies of insurance shall provide
for a minimum of thirty (30) days' written notice to the Secured Party prior to
any cancellation, modification or non-renewal thereof. The Debtor shall, on the
date hereof and from time to time upon request hereafter, furnish the Secured
Party with certificates or other evidence satisfactory to the Secured Party of
compliance with the foregoing insurance provisions and the payment of all
required insurance premiums.
(f) That the Debtor will keep all of the Collateral free from
any and all adverse liens, security interests or encumbrances and in good order
and repair, reasonable wear and tear excepted, and will not waste or destroy the
Collateral or any part thereof.
(g) That the Debtor will not use any of the Collateral in
violation of any applicable law.
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SECTION 6. RECORDS RELATING TO COLLATERAL.
The Debtor will keep and maintain complete and accurate records
concerning the Collateral, including the Accounts and all chattel paper included
in the Accounts, at its principal executive office as set forth in EXHIBIT A
annexed hereto, or at such other place(s) of business as the Secured Party may
approve in writing. The Debtor will (a) faithfully hold and preserve such
records and chattel paper, (b) permit representatives of the Secured Party, at
any time during normal business hours, upon reasonable notice, and without undue
material disruption of the Debtor's business, to examine and inspect the
Collateral and to make copies and abstracts of such records and chattel paper,
and (c) furnish to the Secured Party such information and reports regarding the
Collateral as the Secured Party may from time to time reasonably request.
SECTION 7. COLLECTIONS WITH RESPECT TO ACCOUNTS.
The Debtor will, at its expense:
(a) endeavor to collect or cause to be collected from customers
and other Persons indebted on Accounts, as and when due, any and all amounts,
including interest, owing under or on account of each Account.
(b) take or cause to be taken such appropriate action to
repossess goods, the sale of which gave rise to any Account, or to enforce any
rights or liens under Accounts, as the Debtor or the Secured Party may deem
proper, and in the name of the Debtor or the Secured Party, as the Secured Party
may deem proper; PROVIDED, that (i) the Debtor will use its best judgment to
protect the interests of the Secured Party, and (ii) the Debtor shall not be
required under this Section 7 to take any action which would be contrary to any
applicable law. The Debtor shall, at the request of the Secured Party following
the occurrence and during the continuance of an Event of Default, notify the
account debtors of the Security Interests of the Secured Party in any of the
Accounts, and the Secured Party may itself at any such time so notify account
debtors. The Secured Party shall have full power at any time after such notice
to collect, compromise, endorse, sell or otherwise deal with any or all
outstanding Accounts or the proceeds thereof in the name of either the Secured
Party or the Debtor. In the event that, after notice to any account debtors
directing payments to the Secured Party, the Debtor receives any payment(s) on
any Account(s), such payment(s) shall be held by the Debtor in trust for the
Secured Party and immediately turned over to the Secured Party as aforesaid, for
application in accordance with Section 11 below.
SECTION 8. GENERAL AUTHORITY.
(a) In the event that the Secured Party shall at any time be
required to take action to defend the Security Interests, or the Debtor shall
fail to satisfy its obligations under Section 5(c) or 5(e) hereof, then the
Secured Party shall have the right, but shall not be obligated, to take such
steps and make such payments as may be required in order to effect compliance,
and the Secured Party shall have the right either to demand and receive
immediate reimbursement
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from the Debtor for all costs and expenses incurred by the Secured Party in
connection therewith, and/or to add such costs and expenses to the Loan
Obligations.
(b) The Debtor hereby irrevocably appoints the Secured Party
the true and lawful attorney for the Debtor, with full power of substitution, in
the name of the Debtor, the Secured Party or otherwise, for the sole use and
benefit of the Secured Party, but at the Debtor's expense, to the extent
permitted by law to exercise, at any time and from time to time during the
continuance of an Event of Default, any or all of the following powers with
respect to any or all of the Collateral (which powers shall be in addition and
supplemental to any powers, rights and remedies of the Secured Party described
herein):
(i) to demand, ▇▇▇ for, collect, receive and give
acquittance for any and all monies due or to become due upon or by virtue
thereof; and
(ii) to receive, take, endorse, assign and deliver any
and all checks, notes, drafts, documents and other negotiable and non-negotiable
instruments and chattel paper taken or received by the Secured Party in
connection therewith; and
(iii) to settle, compromise, discharge, extend, compound,
prosecute or defend any action or proceeding with respect thereto; and
(iv) to sell, transfer, assign or otherwise deal in or
with same, or the proceeds or avails thereof, or the related goods securing the
Accounts, as fully and effectually as if the Secured Party were the absolute
owner thereof; and
(v) to extend the time of payment of any or all thereof
and to make any allowance and other adjustments with reference thereto; and
(vi) to discharge any taxes, liens, security interests or
other encumbrances at any time placed thereon.
Anything hereinabove contained to the contrary notwithstanding, the Secured
Party shall give the Debtor not less than ten (10) days' prior written notice of
the time and place of any sale or other intended disposition of any of the
Collateral, except any Collateral which is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market. The
Secured Party and the Debtor hereby agree that such notice constitutes
"reasonable notification" within the meaning of Section 9-504(3) of the Code.
SECTION 9. REMEDIES UPON EVENT OF DEFAULT.
If any Event of Default shall have occurred and be continuing, the
Secured Party may exercise all of the rights and remedies of a secured party
under the Code (whether or not the Code is in effect in the jurisdiction where
such rights and remedies are exercised) and, in addition, the Secured Party may,
without being required to give any notice, except as herein provided or as may
be required by mandatory provisions of law, (a) apply the cash, if any, then
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held by it as Collateral in the manner specified in Section 11 hereof, and (b)
if there shall be no such cash or if such cash shall be insufficient to pay all
of the Loan Obligations in full, sell the Collateral, or any part thereof, at
public or private sale or at any broker's board or on any securities exchange,
for cash, upon credit or for future delivery, and at such price or prices as the
Secured Party may deem satisfactory. The Secured Party may require the Debtor to
assemble all or any part of the Collateral and make it available to the Secured
Party at a place to be designated by the Secured Party. Any holder of a Loan
Obligation may be the purchaser of any or all of the Collateral so sold at any
public sale (or, if the Collateral is of a type customarily sold on a recognized
market or is of a type which is the subject of widely distributed standard price
quotations, at any private sale) and thereafter hold same, absolutely free from
any right or claim of whatsoever kind. The Secured Party is authorized, at any
such sale, if it reasonably deems same to be advisable, to restrict the
prospective bidders or purchasers of any of the Collateral which could be
subject to federal or state securities laws to persons who will represent and
agree that they are purchasing for their own account for investment and not with
a view to the distribution or sale of any of such Collateral; and the Debtor
hereby acknowledges that such restriction may result in a lower price being
obtained for the subject Collateral, and the Debtor hereby waives any claim
arising therefrom. Upon any such sale, the Secured Party shall have the right to
deliver, assign and transfer to the purchaser thereof the Collateral so sold.
Each purchaser at any such sale shall hold the Collateral so sold absolutely,
free from any claim or right of whatsoever kind, including any equity or right
of redemption of the Debtor. To the extent permitted by law, the Debtor hereby
specifically waives all rights of redemption, stay or appraisal which it has or
may have under any rule of law or statute now existing or hereafter adopted, and
waives any requirement for the marshalling of any Collateral. The Secured Party
shall give the Debtor not less than ten (10) days' prior written notice of its
intention to make any such public or private sale or sales at a broker's board
or on a securities exchange. Such notice, in case of a public sale, shall state
the time and place fixed for such sale, and in case of sale at a broker's board
or on a securities exchange, shall state the board or exchange at which such
sale is to be made and the day on which the Collateral, or the portion thereof
being sold, will first be offered for sale at such board or exchange. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Secured Party may fix in the notice of such
sale. At any such sale, the Collateral may be sold in one lot as an entirety or
in separate parcels, as the Secured Party may determine. The Secured Party shall
not be obligated to make such sale pursuant to any such notice. The Secured
Party may, without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any time or place to
which the same may be adjourned. In case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral so sold may be
retained by the Secured Party until the selling price is paid by the purchaser
thereof, but the Secured Party shall not incur any liability in the case of the
failure of such purchaser to take up and pay for the Collateral so sold and, in
case of any such failure, such Collateral may again be sold upon like notice.
The Secured Party, instead of exercising the power of sale herein conferred upon
it, may proceed by a suit or suits at law or in equity to foreclose the Security
Interests and sell the Collateral, or any portion thereof, under a judgment or
decree of a court or courts of competent jurisdiction.
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SECTION 10. RIGHT OF SECURED PARTY TO USE AND OPERATE COLLATERAL.
Upon the occurrence and during the continuance of any Event of Default,
to the extent permitted by law, the Secured Party shall have the right and
power, with or without legal process, to enter upon any or all of the Debtor's
premises, to take possession of all or any part of the Collateral, and to
exclude the Debtor and all persons claiming under the Debtor wholly or partly
therefrom, and thereafter to sell same in accordance herewith and/or hold,
store, and/or use, operate, manage and control the same. Upon any such taking of
possession, the Secured Party may, from time to time, at the expense of the
Debtor, make all such repairs, replacements, alterations, additions and
improvements to the Collateral as the Secured Party may deem proper. In such
case, the Secured Party shall have the right to manage and control the
Collateral and to carry on the business and to exercise all rights and powers of
the Debtor in respect thereof as the Secured Party shall deem proper, including
the right to enter into any and all such agreements with respect to the leasing
and/or operation of the Collateral or any part thereof as the Secured Party may
see fit; and the Secured Party shall be entitled to collect and receive all
rents, issues, profits, fees, revenues and other income of the same and every
part thereof. Such rents, issues, profits, fees, revenues and other income shall
be applied to pay the expenses of holding and operating the Collateral and of
conducting the business thereof, and of all maintenance, repairs, replacements,
alterations, additions and improvements, and to make all payments which the
Secured Party may be required or may elect to make, if any, for taxes,
assessments, insurance and other charges upon the Collateral or any part
thereof, and all other payments which the Secured Party may be required or
authorized to make under any provision of this Agreement (including legal costs
and reasonable attorneys' fees). The remainder of such rents, issues, profits,
fees, revenues and other income shall be applied in accordance with Section 11
below, and, unless otherwise provided or required by law or by a court of
competent jurisdiction, any surplus shall be paid over to the Debtor.
SECTION 11. APPLICATION OF COLLATERAL AND PROCEEDS.
The proceeds of any sale of, or other realization upon, all or any part
of the Collateral shall be applied in the following order of priorities:
(a) first, to pay the expenses of such sale or other
realization, and all expenses, liabilities and advances incurred or made by or
on behalf of the Secured Party in connection therewith, and any other
unreimbursed expenses for which the Secured Party is to be reimbursed pursuant
to Section 12 hereof;
(b) second, to the payment of the Loan Obligations then
outstanding in such order or manner as the Secured Party, in its sole
discretion, shall determine; and
(c) finally, to pay to the Debtor, or its successors or
assigns, or as a court of competent jurisdiction may direct, any surplus then
remaining from such proceeds.
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SECTION 12. EXPENSES; SECURED PARTY'S LIEN.
The Debtor will, forthwith upon demand, pay to the Secured Party:
(a) the amount of any taxes or other charges which the
Secured Party may have been required to pay by reason of the Security Interests
(including any applicable transfer taxes) or to free any of the Collateral from
any lien thereon; and
(b) the amount of any and all reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of its counsel and of
any agents not regularly in its employ, which the Secured Party may incur in
connection with (i) the collection, sale or other disposition of any of the
Collateral, (ii) the exercise by the Secured Party of any of the powers
conferred upon it hereunder, and/or (iii) any default on the Debtor's part
hereunder.
SECTION 13. TERMINATION OF SECURITY INTERESTS; RELEASE OF COLLATERAL.
Upon the indefeasible payment in full of all Loan Obligations, the
Security Interests shall terminate and all rights in the Collateral shall revert
to the Debtor. Upon any such termination of the Security Interests or release of
Collateral, the Secured Party will, at the Debtor's expense, execute and deliver
to the Debtor such documents as the Debtor shall reasonably request to evidence
the termination of the Security Interests or the release of such Collateral, as
the case may be.
SECTION 14. RIGHT OF SET-OFF.
In furtherance and not in limitation of any provisions herein contained,
the Debtor hereby agrees that any and all deposits or other sums at any time due
from the Secured Party to the Debtor shall at all times constitute security for
the Obligations, and the Secured Party may exercise any right of set-off against
such deposits or other sums as may accrue or exist hereunder and/or under
applicable law.
SECTION 15. NOTICES.
All notices, demands and other communications hereunder shall be given
or made to the subject party at its address and/or telecopier number as set
forth in below or at such other address and/or telecopier number as the
addressee may hereafter specify for the purpose by means of written notice to
the other party hereto. Such notices and other communications will be
effectively given only if and when given in writing and personally delivered,
when sent by facsimile transmission to a party's designated facsimile number,
one (1) day after being sent by Federal Express or other recognized overnight
courier service with all charges prepaid or billed to the account of the sender,
or three (3) days after being mailed by first class mail with all postage
prepaid.
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Secured Party: Sharp of Florida, Inc.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Debtor: International Cutlery, Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. Silver
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 16. WAIVERS; NON-EXCLUSIVE REMEDIES.
No failure on the part of the Secured Party to exercise, and no delay in
exercising, and no course of dealing with respect to, any right, power or remedy
under this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise by the Secured Party of any right, power or remedy under this
Agreement preclude any exercise of any other right, power or remedy. The
remedies in this Agreement are cumulative and are not exclusive of any other
remedies provided by law, in equity or otherwise.
SECTION 17. CHANGES IN WRITING.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally but only by a statement in writing signed by the
party against which enforcement of the change, waiver, discharge or termination
is sought.
SECTION 18. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) This Agreement shall (irrespective of where it is
executed, delivered and/or performed) be governed by and construed in accordance
with the laws of the State of New York (without giving effect to principles of
conflicts of law), except as otherwise required by mandatory provisions of law
and except to the extent that remedies provided by the laws of any State other
than New York are governed by the laws of said State.
(b) The Debtor hereby consents to the jurisdiction of all
courts sitting in the State of New York, and of all courts from which an appeal
therefrom may be taken, with respect to any action or proceeding relating to
this Agreement or any related transactions. THE DEBTOR HEREBY WAIVES ANY RIGHT
TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING, AND CONSENTS THAT THE SECURED
PARTY MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE DEBTOR WITH RESPECT TO JURISDICTION AND THE WAIVER OF THE
RIGHT TO TRIAL BY JURY.
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SECTION 19. SEVERABILITY.
If any provision hereof is held invalid or unenforceable in any
jurisdiction, such provision shall (for purposes of enforcement in such
jurisdiction only) be reduced in scope and effect to the extent necessary to
render same enforceable, and the other provisions hereof shall remain in full
force and effect in such jurisdiction and shall be liberally construed in favor
of the Secured Party.
SECTION 20. HEADINGS.
The captions and Section headings in this Agreement are for convenience
of reference only, and shall not limit or otherwise affect the meaning or
interpretation of any provision hereof.
SECTION 21. ASSIGNMENT.
This Agreement may not be assigned by the Debtor without the Secured
Party's prior written consent, but shall otherwise be binding upon and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and assigns.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first set forth above.
SECURED PARTY:
SHARP OF FLORIDA, INC.
By: /s/
--------------------------------
DEBTOR:
INTERNATIONAL CUTLERY, LTD.
By: /s/
--------------------------------
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