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EXHIBIT 4(d)
GENERAL SECURITY AGREEMENT
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TRANSMATION, INC. ("BORROWER"), an Ohio corporation authorized to do
business in New York State, with an office and principal place of business at 00
Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, hereby grants to MANUFACTURERS
AND TRADERS TRUST COMPANY, as Agent for MANUFACTURERS & TRADERS TRUST COMPANY (a
"Bank"), STATE STREET BANK AND TRUST COMPANY (a "BANK") and each Bank that may
hereafter become a bank under a Revolving Credit and Term Loan Agreement dated
as of April 4, 1997 (the "AGREEMENT") (in such capacity, together with its
successors in such capacity, the "AGENT"), as security for the prompt payment of
all amounts at any time owed to any Bank or the Agent pursuant to the terms of
the Agreement (the "INDEBTEDNESS"), by acceleration or otherwise, a security
interest in all of the following:
A. All of Debtor's Accounts (as defined in Section 9-106 of the UCC)
whether secured or unsecured, now owned or hereafter acquired, and the
proceeds thereof (the "Accounts") ;
B. All of Debtor's Instruments (as defined in Section 9-105(1)(i) of
the UCC), now owned or hereafter acquired, and the proceeds thereof
(the "Instruments");
C. All of Debtor's Chattel Paper (as defined in Section 9-105(1)(b) of
the UCC), now owned or hereafter acquired, and the proceeds thereof
(the "Chattel Paper");
D. All of Debtor's General Intangibles (as defined in Section 9-106 of
the UCC), now owned or hereafter acquired, and the proceeds thereof
(the "General Intangibles");
E. All of Debtor's Inventory (as defined in Section 9-109(4) of the
UCC), now owned or hereafter acquired, and the proceeds thereof (the
"Inventory");
F. All of Debtor's Equipment (as defined in Section 9-109(2) of the
UCC) and all attachments, accessories, parts or tooling relating
thereto and all replacements for the foregoing, in each case now owned
or hereafter acquired, and the proceeds thereof (the "Equipment");
G. All of Debtor's Insurance with respect to the Inventory, General
Intangibles, Fixtures, Equipment and Goods against risks of fire, theft
or any other physical damage or loss, now owned or hereafter acquired,
and the proceeds thereof, and all insurance insuring the payment of
Accounts, now owned or hereafter acquired, and the proceeds thereof;
H. All goodwill, trade names, trademarks, trade secrets, know-how,
inventions, patents, patent applications, copyrights and other
intellectual property, now owned or hereafter acquired by Debtor, or
any rights of Debtor with respect to any of the
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foregoing, now owned or hereafter acquired, whether or not any of the
same are covered in other categories of this Schedule, and the proceeds
thereof;
I. All of Debtor's Documents of Title (as defined in Section 1-201-(15)
of the UCC), now owned or hereafter acquired, and the proceeds thereof;
J. All of Debtor's Goods (as defined in Section 2-105(1) of the UCC),
now owned or hereafter acquired, whether or not any of the same are
covered in other categories of this Schedule, and the proceeds thereof
(the "Goods");
K. All of Debtor's Fixtures (as described in Section 9-313 of the UCC),
now owned or hereafter acquired, and the proceeds thereof (the
"Fixtures");
L. All of Debtor's right, title and interest in all of its books,
records, ledger sheets, files and other data and documents, now owned
or hereafter existing, relating to any of the items listed in Sections
(a) through (k) above;
M. All of Debtor's rights as a seller of goods under Article 2 of the
UCC with respect to the Inventory, and as to goods represented by or
securing any of the Accounts, all of Debtor's rights therein including,
without limitation, rights of stoppage in transit, replevin and
reclamation; and
N. All guarantees, mortgages and real or personal property leases or
other written or oral agreements or property securing or relating to
any of the items referred to above, or acquired for the purpose of
securing and enforcing any of such items; and
O. All sums at any time standing to Debtor's credit on Secured Party's
books, and all moneys, securities and other property of Debtor at any
time in Secured Party's possession or in which Secured Party has a lien
or security interest, and all proceeds thereof; and
P. All stock and certificated securities (defined in UCC
Section 8-102(1)(a), now owned by Borrower or in which Borrower now
has any interest and all stock and certificated securities hereafter
acquired by Borrower or in which Borrower hereafter acquires any
interes ("SECURITIES"); and
Q. All cash and non-cash proceeds of the items listed in "A" through
"P" above, including but not limited to insurance proceeds
("PROCEEDS"). The items set forth in "A" through "Q" are collectively
referred to in this Security Agreement as the "COLLATERAL."
1. This Security Agreement is given pursuant to a Revolving Credit and
Term Loan Agreement entered into between Borrower, Banks and Agent on the same
date this Security Agreement was executed ("AGREEMENT"). All terms and
conditions of the Agreement, including but not limited to definitions set forth
in Article I of the Agreement and defaults set forth in
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Article VIII of the Agreement, are hereby incorporated by reference into this
Security Agreement.
2. Borrower shall have the right to use the Equipment, Fixtures,
Inventory, Goods, Documents of Title and General Intangibles pursuant to the
provisions of this Security Agreement and consistent with the terms of the
insurance thereon, so long as Borrower is not in default under this Security
Agreement. Borrower may sell Inventory in the ordinary course of its business.
Borrower shall not sell, convey or encumber any of the other Collateral without
the prior written consent of the Agent. So long as Borrower is not in default
under this Security Agreement, Borrower shall have the right, at its own expense
and cost, to collect the Accounts, Chattel Paper and Instruments and use the
Proceeds thereof and any other Proceeds for general corporate purposes.
3. All records, ledger sheets, correspondence, invoices, documents and
instruments relating to or evidencing the Collateral shall, until delivered to
or removed by the Agent be kept at Borrower's real property or at other
permitted locations set forth in SCHEDULE A attached to this Security Agreement,
without cost to Agent or Banks, in appropriate containers in safe places,
bearing suitable legends identifying them and all related files, containers,
receptacles and cabinets. For each leased Permitted Location specified in
SCHEDULE A, Borrower shall provide the Agent with a Landlord's Waiver executed
by the owner of such Permitted Location, which Landlord's Waiver shall be in the
form of SCHEDULE B, with blanks appropriately completed. The Agent or the Banks
shall at all reasonable times and on reasonable notice have reasonable access to
and the right to audit Borrower's books and records, inspect, confirm and verify
the Collateral at Borrower's real property and at other permitted locations and
elsewhere, and to do whatever else the Agent or Banks deems reasonably necessary
to protect their interests.
4. Borrower represents and warrants to the Agent and each Bank as
follows:
a. Borrower's principal place of business is located at
00 Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx
("PREMISES"), and it presently neither owns nor
leases any other real property, except as set forth
in SCHEDULE A.
b. The various types of Collateral and records relating
thereto, are located at Borrower's real property as
listed in Schedule A. Borrower will promptly notify
Agent in writing when any Collateral is to be located
at a place other than at those locations listed in
SCHEDULE A.
c. The Equipment and Fixtures were bought or leased
primarily for use by Borrower in its business and
will not be held for sale or lease or otherwise
disposed of by Borrower without Agent's written
consent except as otherwise allowed by this Security
Agreement.
d. That each Account presently existing is due and
payable and:
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i. Arose from a bona fide sale of goods or
services by Borrower or E.I.L. Instruments,
Inc. Borrower is not in default in providing
such goods or services.
ii. Is based on an enforceable order or contract
written or oral, for the goods shipped or
the services performed and that the same
were shipped or performed in accordance with
such order or contract.
iii. Is not subject to any assignment, claim,
lien or security interest of any character
except for security interests in favor of
the Agent and the Banks and except for
permitted liens set forth in SCHEDULE C to
this Security Agreement. Borrower will not
make any other assignment thereof or create
any other security interest therein.
e. Borrower will provide the Agent and each Bank with
all information requested by the Agent or any Bank
with regard to the Accounts and any other Collateral.
f. It is the owner of the Collateral free and clear of
any other security interests, liens or encumbrances,
except for security interests in favor of the Agent
and any Bank and other permitted liens set forth in
SCHEDULE C to this Security Agreement.
g. It will defend the Collateral against all claims and
demands of any person or entity claiming an interest
therein.
h. It will immediately notify the Agent in writing of
any change in its name or address, and any occurrence
of damage to a material portion of the Collateral.
i. It will cause its insurers to note the Agent's and
each Banks' interest in the Collateral on all
insurance policies relating to the Collateral.
j. Attached as SCHEDULE D is a list of all Instruments,
Documents and Chattel Paper currently owned by
Borrower, or in which Borrower now has any interest.
k. Attached as SCHEDULE E is a list of all Securities
currently owned by Borrower, or in which Borrower now
has any interest. Borrower does not currently own or
have any interest in any uncertificated securities
(defined in UCC Section 8- 102(1)(b)).
l. Attached as SCHEDULE F is a list of all vehicles now
owned by Borrower,
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together with the state of its registration
("Vehicles").
m. Attached as SCHEDULE G is a list of all Borrower's
currently owned Patents, Licenses, Trademarks,
Tradenames, Copyrights and other Intellectual
Property (collectively, "Intellectual Intangibles"),
or Intellectual Intangibles in which Borrower now has
any interest.
n. Borrower is not a party to any contract or agreement
with the United States Government or any subdivision
or agency thereof ("Government Contracts").
5. The Agent may file financing statements to perfect the security
interests of the Agent and Banks in the Collateral without Borrower's signature.
Simultaneously with the execution of this Agreement, and at any time thereafter,
Borrower shall execute and deliver to the Agent all documents and instruments
requested by the Agent or Banks necessary to maintain a valid first perfected
security interest in the Collateral. Borrower shall deliver physical possession
of all Instruments to the Agent, endorsed by Borrower in blank, as well as all
Securities, owned by Borrower, together with stock powers signed in blank. At
any time that Borrower acquires or obtains any Instruments, Documents, Chattel
Paper, Securities, uncertificated securities, Vehicles, Intellectual
Intangibles, or Government Contracts, or any interest therein, Borrower will
immediately notify the Agent of such acquisition in writing and will execute all
such documents and other writings and taking such actions (including but not
limited to delivery to Agent of physical possession of Instruments, Documents,
Chattel Papers and Securities), as the Agent or Banks shall deem necessary in
order to perfect the Agent's and Banks' security in such Collateral.
6. Borrower will pay promptly when due all taxes and assessments upon
the Collateral.
7. Borrower authorizes the Agent, and the Agent may, at its option, but
shall not be obligated to discharge taxes, liens, security interests, or other
encumbrances at any time levied or placed on the Collateral, may pay for
insurance on the Collateral, and may pay for maintenance and preservation of the
Collateral. If Borrower fails to do anything which it undertakes to do under
this Security Agreement and/or under the Agreement, the Agent may do the same,
but shall not be obligated to take any action. Borrower agrees to reimburse the
Agent, for the account of the Banks, on demand for any payment made or any
expenses incurred by the Agent or Banks including reasonable attorneys' fees
pursuant to the foregoing authorization, together with interest thereon payable
at the Base Rate per annum and all sums so paid shall be secured by the security
interest created in this Security Agreement.
8. Borrower will comply with all of the terms and conditions of the
leases covering the permitted locations as listed on SCHEDULE A which are
leased, and will comply with any rule, order, decree or regulation of any
municipal or state or federal body concerning its business at the Premises, and
at other permitted locations.
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9. Borrower will at all times have and maintain the insurance required
by the Agreement at its own expense with respect to the Collateral and as
otherwise required by the Agreement. Upon the occurrence of a default under this
Security Agreement, the Agent may act as attorney for Borrower in obtaining,
adjusting, or settling for the proceeds of any insurance, whether or not the
Indebtedness is then due, and endorsing in Borrower's name any drafts drawn by
insurers of the Collateral. The Agent may apply any proceeds of insurance
received by it and/or by Borrower to the Indebtedness, whether due or not and
whether or not payment of the Indebtedness has been accelerated or demanded.
Borrower will immediately notify the Agent in writing of any damage to or loss
of a material portion of the Collateral.
10. Borrower shall be in default under this Security Agreement upon the
occurrence of any Event of Default listed in Article VIII of the Agreement, or
upon the abandonment, theft, or damage or destruction of a material portion of
the Collateral. Upon the occurrence of any default under this Security
Agreement, the Agent, on behalf of the Banks, shall have all the rights and
remedies provided for in the Agreement, in this Security Agreement and under the
other Loan Documents, as well as all rights and remedies of a secured party
under the Uniform Commercial Code, and any other laws, including but not limited
to the following:
a. The Agent may peaceably by its own means, or with
judicial assistance enter the Premises, any other
permitted location, and any other place where
Collateral is located, and take possession of the
Collateral or render it unusable or dispose of the
Collateral on such premises. Borrower will not resist
or interfere with such action.
b. The Agent may require Borrower to assemble all or any
part of the Collateral and make it available to the
Agent at any place designated in a notice sent to
Borrower.
c. Borrower hereby agrees that any requirement of the
Uniform Commercial Code for reasonable notice shall
be met if notice is given at least ten (10) days (a)
prior to public sale or disposition or (b) prior to
the date after which private sale or disposition will
be made. No notification shall be required to be sent
to Borrower with regard to the Agent's disposition of
Collateral which is perishable, or which threatens to
decline speedily in value or for which notice of
disposition is not otherwise required under the
Uniform Commercial Code. The Agent or Banks may bid
or become purchasers at any public sale, free from
any right of redemption, which right is expressly
waived. Borrower shall remain liable for any
deficiency.
d. The Agent's and Banks' reasonable attorneys' fees and
legal expenses in the Agent's exercising any of its
rights and remedies upon default shall become part of
the Agent's reasonable expenses of retaking, holding,
preparing for sale and the like.
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e. Borrower shall make available to the Agent such
employees or agents as are necessary to assist the
Agent in enforcing its rights in the Collateral.
f. With regard to Accounts, Chattel Paper and
Instruments, the Agent shall have the following
additional rights:
i. To enforce, settle, or compromise payment of
any Account, Chattel Paper and/or
Instruments.
ii. To release in whole or in part, any amounts
owing on Accounts, Chattel Paper and/or on
Instruments.
iii. To prosecute any action or proceeding with
respect to Accounts, Chattel Paper and/or
Instruments in its own name or in the name
of Borrower.
iv. To extend the time of payment of any or all
Accounts, Chattel Paper and/or Instruments.
v. To make allowances and adjustments with
respect to Accounts, Chattel Paper and/or
Instruments.
vi. To issue credit in Borrower's or Agent's
name.
vii. To sell, discount, assign and deliver the
Accounts, Chattel Paper and/or Instruments
or any part thereof, and any returned,
reclaimed or repossessed merchandise or
other property held by the Agent or by
Borrower for the Agent's account, at public
or private sale, at broker's board, for
cash, upon credit or otherwise, at the
Agent's sole option and discretion.
viii. To direct makers, endorsers or guarantors to
make payments directly to the Agent.
ix. To remove from any Permitted Locations or
other real property, any and all documents,
agreements, files and records relating to
the Accounts, Chattel Paper and/or the
Instruments and/or to other Collateral, and
to permit the Agent's use of, without cost
or expense, such of Borrower's personnel,
supplies and space at the Premises as may be
reasonably necessary to properly administer
and control the Accounts, Chattel Paper
and/or the Instruments, or the handling of
collection thereon.
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x. To receive, open and dispose of all mail
addressed to Borrower and to notify postal
authorities to change the address for
delivery thereof to such address as the
Agent may designate.
g. To endorse and cash checks in its own name or in
Borrower's name, pursuant to an irrevocable power of
attorney which it hereby grants to the Agent.
11. No remedy conferred herein, by law, under this Security Agreement,
under the Agreement, under the other Documents, or otherwise is intended to be
an exclusive remedy. All Agent's remedies are cumulative. Failure by the Agent
or Banks to exercise any right, remedy or option under the Agreement, under this
Security Agreement or under any other Document, or delay by the Agent or any
Bank in exercising the same, shall not operate as a waiver thereof. No waiver by
the Agent or any Bank will be effective unless it is confirmed in writing and
then only to the extent specifically stated. This Security Agreement cannot be
changed, modified or terminated orally. To the extent that the Indebtedness is
now or hereafter secured by property other than the Collateral or by the
guarantee, endorsement or property of any other entity, the Agent and Banks
shall have the rights at their sole discretion, to determine which rights,
securities, liens, security interest or remedies the Agent or Banks shall at any
time pursue, relinquish, subordinate or modify, or take any action with respect
thereto without in any way modifying or affecting any of the Agent's or Banks'
rights hereunder.
12. All rights of the Agent and each Bank hereunder shall inure to the
benefit of their successors or assigns, and all obligations of Borrower shall
bind its successors and assigns.
13. This Agreement is governed by New York law and may not be changed
or terminated orally. Any litigation involving this Security Agreement and/or
the Collateral shall, at the Agent's option, be triable only in a court located
in Monroe County, New York. BORROWER WAIVES THE RIGHT TO A JURY TRIAL IN ANY
LITIGATION INVOLVING BORROWER, THE AGENT or ANY BANK. Borrower waives the right
to require the posting of an undertaking in any actions or special proceedings
involving Borrower, the Agent or any Bank, including but not limited to an
action under Article 71 of the CPLR.
IN WITNESS WHEREOF, Borrower has executed and unconditionally delivered
this Security Agreement to the Agent on April 4, 1997.
TRANSMATION, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
Vice President
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STATE OF NEW YORK )
COUNTY OF MONROE ) ss:
On April 4, 1997 before me personally appeared Xxxxxx X. Xxxxxxxxxxx,
to me known, who, being by me duly sworn, did depose and say that he resides in
Rochester, New York; that he is the PRESIDENT of TRANSMATION, INC., the
corporation described in and which executed the within instrument; that he knows
the seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation; he signed his name thereto by like order.
/s/ W. D. Bay
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Notary Public
NOTARY SEAL DESCRIPTION
XXXXXX X. BAY
NOTARY PUBLIC, STATE OF NEW YORK
Qualified in Monroe County
Commission expires
February 3, '98
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TABLE OF SCHEDULES
* Schedule A List of Real Property Owned and Leased by
Transmation, Inc. ("Borrower)
* Schedule C List of Permitted Liens
* Schedule D List of Borrower's Instruments, Documents and Chattel Paper
* Schedule E List of Securities Owned by Borrower
* Schedule F List of Borrower's Vehicles
* Schedule G List of Copyrights, Trademarks, Patents, Etc.
* OMITTED SCHEDULES
UPON WRITTEN REQUEST, THE REGISTRANT WILL PROVIDE COPIES OF ANY OF THE
REFERENCED OMITTED SCHEDULES.
