Exhibit 10(a)
BUSINESS SECURITY AGREEMENT
This Business Security Agreement ("Agreement") is made and entered into by the
undersigned borrower, guarantor and/or other obligor/pledgor (the "Debtor") in
favor of U.S. BANK N.A. (the "Bank") as of the date set forth on the last page
of this Agreement.
ARTICLE 1. SECURITY INTEREST
1.1 Grant of Security Interest. Debtor hereby grants a security interest in and
collaterally assigns the Collateral (defined below) to Bank to secure all of
Debtor's Obligations (defined below) to Bank. The intent of the parties hereto
is that the Collateral secures all Obligations of Debtor to Bank, whether or not
such Obligations exist under this Agreement or any other agreements, whether now
or hereafter existing, between Debtor and Bank or in favor of Bank, including,
without limitation, any note, any loan or security agreement, any lease, any
mortgage, deed of trust or other pledge of an interest in real or personal
property, any guaranty, any letter of credit or banker's acceptance, any
agreement for any other services or credit extended by Bank to Debtor even
though not specifically enumerated herein, and any other agreement with Bank
(together and individually, the "Loan Documents").
1.2 "Collateral" means all of the following whether now owned or existing or
hereafter acquired by Debtor (or by Debtor with spouse), wherever located
(including all documents, general intangibles, additions and accessions, spare
and repair parts, special tools, replacements, returned or repossessed goods and
books and records relating to the following; and all proceeds, supporting
obligations and products of the following) [check all that apply]:
[X] All accounts, instruments, documents, chattel paper, general intangibles,
contract rights, investment property (including any securities entitlements
and/or securities accounts held by Debtor), securities and certificates of
deposit, deposit accounts, and letter of credit rights;
[X] All inventory;
[X] All equipment;
[_] All fixtures; and
[_] Specific Collateral (the following, whether constituting equipment,
inventory, fixtures, or other collateral):
______________________________________________________________________________
______________________________________________________________________________
In the event the first four boxes are checked, Debtor acknowledges and agrees
that, in applying the law of any jurisdiction that at any time enacts all or
substantially all of the uniform provisions of Revised Article 9 of the Uniform
Commercial Code (1999 Official Text), the foregoing collateral description
covers all assets of Debtor. Bank may at any time and from time to time file
financing and continuation statements and amendments thereto reflecting the
same. Unless otherwise defined, the terms set forth in this Agreement shall have
the meanings set forth in the Uniform Commercial Code as adopted in the Loan
Documents and as amended form time to time. The defined terms hereunder shall be
interpreted in a manner most favorable to Bank.
1.3 "Obligations" means all Debtor's debts (except for consumer credit if
Debtor is a natural person), liabilities, obligations, covenants, warranties,
and duties to Bank (plus its affiliates including any credit card debt, but
specifically excluding any type of consumer credit), whether now or hereafter
existing or incurred, whether liquidated or unliquidated, whether absolute or
contingent, whether arising out of the Loan Documents or otherwise, and all
other debts and obligations due Bank under any lease, agricultural, real estate
or other financing transaction and regardless of whether such financing is
related in time or type to the financing provided at the time of grant of this
security interest, and regardless of whether such Obligations arise out of
existing or future credit granted by Bank to any Debtor, to any Debtor and
others, to others guaranteed, endorsed or otherwise secured by any Debtor or to
any debtor-in-possession or other successor-in-interest of any Debtor, and
including principal, interest, fees, expenses and charges relating to any of the
foregoing.
ARTICLE 11. WARRANTIES AND COVENANTS
In addition to all other warranties and covenants of Debtor under the Loan
Documents which are expressly incorporated herein as part of this Agreement and
while any part of the credit granted Debtor under the Loan Documents is
available or any Obligations of Debtor to Bank are unpaid or outstanding, Debtor
continuously warrants and agrees as follows:
2.1 Debtor's Name, Location; Notice of Location Changes. Except as indicated in
the Article 9 Certificate executed by Debtor and made a part hereof, Debtor's
name and organizational structure has remained the same during the past five (5)
years. Debtor will continue to use only the name set forth with Debtor's
signature unless Debtor gives Bank prior written notice of any change.
Furthermore, Debtor shall not do business under another name nor use any trade
name without giving ten (10) days prior written notice to Bank. Debtor will not
change its status or organizational structure without the prior written consent
of Bank. Debtor will not change its location or registration (if Debtor is a
registered organization) to another state without prior written notice to Bank.
The address appearing in the Article 9 Certificate is Debtor's chief executive
office (or residence if Debtor is a sole proprietor).
2.2 Status of Collateral. All Collateral is genuine and validly existing.
Except for items of insignificant value or as otherwise reflected in writing by
Debtor to Bank under a borrowing base or otherwise, (i) Collateral constituting
inventory, equipment and fixtures is in good condition, not obsolete and is
either currently saleable or usable; and (ii) Collateral constituting accounts,
contract rights, notes, chattel paper and other third-party obligations to pay
is fully enforceable in accordance with its terms and not subject to return,
dispute, setoff, credit allowance or adjustment, except for discounts for prompt
payment. Unless Debtor provides Bank with written notice to the contrary, Debtor
has no notice or knowledge of anything that would impair the ability of any
third-party obligor to pay any debt to Debtor when due.
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2.3 Ownership; Maintenance of Collateral; Restrictions on Liens and
Dispositions. Debtor is the sole owner of the Collateral free of all liens,
claims, other encumbrances and security interests except as permitted in writing
by Bank. Debtor shall: (i) maintain the Collateral in good condition and repair
(reasonable wear and tear excepted), and not permit its value to be impaired;
(ii) not permit waste, removal or loss of identity of the Collateral; (iii) keep
the Collateral free from all liens, executions, attachments, claims,
encumbrances and security interests (others than bank's paramount security
interest and those permitted in writing by Bank); (iv) defend the Collateral
against all claims and legal proceedings by persons other than Bank; (v) pay and
discharge when due all taxes, levies and other charges or fees upon the
Collateral except for payment of taxes contested by Debtor in good faith by
appropriate proceedings so long as no levy or lien has been imposed upon the
Collateral; (vi) not lease, sell or transfer the Collateral to any party nor
move it to any new location outside of the ordinary course of business; (vii)
not permit the Collateral, without the consent of Bank, to become a fixture or
an accession to other goods; (viii) not permit the Collateral to be used in
violation of any applicable law, regulation or policy of insurance; and (ix) as
to the Collateral consisting of instruments and chattel paper, preserve Bank's
rights in it against all other parties. Notwithstanding the above, Debtor may
sell, lease or transfer inventory in the ordinary course of its business
provided that no sale, lease or transfer shall include any transfer or sale in
satisfaction (partial or complete) of a debt owed by Debtor; title will not pass
to buyer until Debtor physically delivers the goods to buyer or Debtor ships the
goods F.O.B. to buyer's destination; and sales and/or leases to Debtor's
affiliates shall be for fair market value, cash on delivery, with the proceeds
remitted to Bank.
2.4 Maintenance of Security Interest; Purchase Money Security Interests.
Debtor shall take any action requested by Bank to preserve the Collateral and to
establish the value of, the priority of, to perfect, to continue the perfection
of or to enforce Bank's interest in the Collateral and Bank's rights under this
Agreement; and shall pay all costs and expenses related thereto. Debtor shall
also cooperate with Bank in obtaining control (for purposes of perfection under
the Uniform Commercial Code) of Collateral consisting of deposit accounts,
investment property, letter of credit rights, electronic chattel paper and any
other collateral where Bank may obtain perfection through control. Debtor hereby
authorizes Bank to take any and all actions described above and in place of
Debtor with respect to the Collateral and hereby ratifies any such actions Bank
has taken prior to the date of this Agreement and hereafter, which actions may
include, without limitation, filing UCC financing statements and obtaining or
attempting to obtain control agreements from holders of the Collateral. Debtor
and Bank intend to maintain the full effect of any purchase money security
interest granted in favor of Bank notwithstanding the fact that the Collateral
so purchased is also pledged as security for any Obligations under the Loan
Documents.
2.5 Collateral Inspections; Modifications and Changes in Collateral. At
reasonable times, Bank may examine the Collateral and Debtor's records
pertaining to it, wherever located, and make copies of such records of Debtor's
expense; and Debtor shall assist Bank in so doing. Without Bank's prior written
consent, Debtor shall not alter, modify, discount, extend, renew or cancel any
Collateral, except for ordinary discounts for prompt payment on accounts,
physical modifications to the inventory occurring in the manufacturing process
or alterations to equipment which do not materially affect its value. Debtor
shall promptly notify Bank in writing of any material change in the condition of
the Collateral and of any change in location of the Collateral.
2.6 Collateral Records, Reports and Statements. Debtor shall keep accurate
and complete records respecting the Collateral in such form as Bank may approve.
At such times as Bank may require, Debtor shall furnish to Bank any
records/information Bank might require, including, without limitation, a
statement certified by Debtor and in such form and containing such information
as may be prescribed by Bank showing the current status and value of the
Collateral.
2.7 Chattel Paper, Instruments, Etc. Chattel paper, instruments, drafts,
notes, acceptances, and other documents which constitute Collateral shall be on
forms satisfactory to Bank. Debtor shall promptly xxxx chattel paper to indicate
conspicuously Bank's security interest therein, shall not deliver any chattel
paper or negotiable instruments to any other entity and, upon request, shall
deliver all original chattel paper, instruments, drafts, notes, acceptances and
other documents which constitute Collateral to Bank.
2.8 United States Government Contracts. If any accounts or contract rights
arose out of contracts with the United States or any of its departments,
agencies or instrumentalities, Debtor shall promptly notify Bank and execute any
writings required by Bank so that all money due or to become due under such
contracts shall be assigned to Bank under the Federal Assignment of Claims Act.
2.9 Environmental Matters. Except as disclosed in a written schedule
attached to this Agreement (if no schedule is attached, there are no
exceptions), there exists no uncorrected violation by Debtor of any federal,
state or local laws (including statutes, regulations, ordinances or other
governmental restrictions and requirements) relating to the discharge of air
pollutants, water pollutants or process waste water or otherwise relating to the
environment or Hazardous Substances as hereinafter defined, whether such laws
currently exist or are enacted in the future (collectively "EnvironmentaLaws").
The term "Hazardous Substances" shall mean any hazardous or toxic wastes,
chemicals or other substances, the generation, possession or existence of which
is prohibited or governed by any Environmental Laws. Debtor is not subject to
any judgement, decree, order or citation, or a party to (or threatened with) any
litigation or administrative proceeding, which asserts that Debtor (i) has
violated any Environmental Laws; (ii) is required to clean up, remove or take
remedial or other action with respect to any Hazardous Substances (collectively
"Remedial Action); or (iii) is required to pay all or a portion of the cost of
any Remedial Action, as a potentially responsible party. There are not now, nor
to Debtor's Knowledge after a reasonable investigation have there ever been, any
Hazardous Substances (or tanks or other facilities for the storage of Hazardous
Substances) stored, deposited, recycled or disposed of on, under or at any real
estate or in soils or ground water, could require Remedial Action. To Debtor's
knowledge, there are no proposed or pending changes in Environmental Laws which
would adversely affect Debtor or its business, and there are no conditions
existing currently or likely to exist while the Loan Documents are in effect
which would subject Debtor to Remedial Action or other liability. Debtor
currently complies with and will continue to timely comply with all applicable
Environmental Laws; and will provide Bank, immediately upon receipt, copies of
any correspondence, notice, complaint, order or other document form any source
asserting or alleging any circumstance or condition which requires or may
require a financial contribution by Debtor or Remedial Action or other response
by or on the part of Debtor under Environmental Laws, or which seeks damages or
civil, criminal or punitive penalties from Debtor for an alleged violation of
Environmental Laws.
2.10 Insurance. Debtor will maintain insurance to such extent, covering
such risks and with such insurers as is usual and customary for businesses
operating similar properties, and as is satisfactory to Bank, including
insurance for fire and other risks insured against by extended or comprehensive
coverage, public liability insurance and workers' compensation insurance; and
will designate Bank as loss payee with a "Lender's Loss Payable" endorsement on
any casualty policies and take such other action as Bank may reasonably request
to ensure that Bank will receive (subject to no other interests) the insurance
proceeds of the Collateral. Debtor hereby assigns all insurance proceeds to and
irrevocably directs, while any Obligations remain unpaid, any insurer to pay to
Bank the proceeds of all such
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insurance and any premium refund; and authorizes Bank to endorse Debtor's name
to effect the same, to make, adjust or settle, in Debtor's name, any claim on
any insurance policy relating to the Collateral; and, at the option of Bank, to
apply such proceeds and refunds to the Obligations or to restoration of the
Collateral, returning any excess to Debtor. In the event of any failure of the
Debtor to obtain or maintain any insurance required hereunder, the Bank shall
have the authority, but not the obligation, to obtain any such insurance
coverage, and the Debtor shall immediately reimburse the Bank for the cost
thereof, together with interest on such amount at the highest rate of interest
then accruing on any of the Obligations.
ARTICLE III. COLLECTIONS
3.1 Deposits with Bank. At any time Bank may require that all proceeds of
Collateral received by Debtor shall be held by Debtor upon an express trust for
Bank, shall not be commingled with any other funds or property of Debtor and
shall be turned over to Bank in precisely the form received (but endorsed by
Debtor, if necessary for collection) not later than the business day following
the day of their receipt. All proceeds of Collateral received by Bank directly
or from Debtor shall be applied against the Obligations in such order and at
such times as Bank shall determine.
ARTICLE IV. RIGHTS AND DUTIES OF BANK
In addition to all other rights (including setoff) and duties of Bank under
the Loan Documents which are expressly incorporated herein as a part of this
Agreement, the following provisions shall also apply:
4.1 Authority to Perform for Debtor. Debtor presently appoints any officer of
Bank as Debtor's attorney-in-fact (coupled with an interest and irrevocable
while any Obligations remain unpaid) to do any of the following upon default by
Debtor hereunder (notwithstanding any notice requirements or grace/cure periods
under this or other agreements between Debtor and Bank): (i) to file, endorse or
place the name of Debtor on any invoice or document of title relating to
accounts, drafts against customers, notices to customers, notes, acceptances,
assignments of government contracts, instruments, financing statements, checks,
drafts, money orders, insurance claims or payments or other documents evidencing
payment or a security interest relating to the Collateral; (ii) to receive, open
and dispose of all mail addressed to Debtor and to notify the Post Office
authorities to change the address for delivery of mail addressed to Debtor to an
address designated by Bank; (iii) to do all such other acts and things necessary
to carry out Debtor's duties under this Agreement and the other Loan Documents;
and (iv) to perfect, protect and/or realize upon Bank's interest in the
Collateral. If the Collateral includes funds or property in depository accounts,
Debtor authorizes each of its depository institutions to remit to Bank, without
liability to Debtor, all of Debtor's funds on deposit with such institution upon
written direction by Bank after default by Debtor hereunder. All acts by Bank
are hereby ratified and approved, and Bank shall not be liable for any act of
commission or omission, nor for any errors of judgment or mistakes of fact or
law.
4.2 Verification and Notification; Bank's Rights. Bank may verify Collateral
in any manner, and Debtor shall assist Bank in so doing. Upon the occurrence of
a default hereunder, Bank may at any time and Debtor shall, upon request of
Bank, notify the account debtors to make payment directly to Bank; and Bank may
enforce collection of, sell, settle, compromise, extend or renew the
indebtedness of such account debtors; all without notice to or the consent of
Debtor. Until account debtors are so notified, Debtor, as agent of Bank, shall
make collections on the Collateral. Bank may at any time notify any bailee
possessing Collateral to turn over the Collateral to Bank.
4.3 Collateral Preservation. Bank shall use reasonable care in the custody and
preservation of any Collateral in its physical possession but in determining
such standard of reasonable care, Debtor expressly acknowledges that Bank has no
duty to; (i) insure the Collateral against hazards; (ii) ensure that the
Collateral will not cause damage to property or injury to third parties; (iii)
protect it from seizure, theft or conversion by third parties, third parties'
claims or acts of God; (iv) give to Debtor any notices received by Bank
regarding the Collateral; (v) perfect or continue perfection of any security
interest in favor of Debtor; (vi) perform any services, complete any
work-in-process or take any other action in connection with the management or
maintenance of the Collateral; or (vii) xxx or otherwise effect collection upon
any accounts even if Bank shall have made a demand for payment upon individual
account debtors. Notwithstanding any failure by Bank to use reasonable care in
preserving the Collateral, Debtor agrees that Bank shall not be liable for
consequential or special damages arising therefrom.
ARTICLE V. DEFAULTS AND REMEDIES
Bank may enforce its rights and remedies under this Agreement upon default. A
default shall occur if Debtor fails to comply with the terms of any Loan
Documents (including this Agreement or any guaranty by Debtor), a demand for
payment is made under a demand loan, or any other obligor fails to comply with
the terms of any Loan Documents for which Debtor has given Bank a guaranty or
pledge.
5.1 Cumulative Remedies; Notice; Waiver. In addition to the remedies for
default set forth in the Loan Documents, Bank upon default shall have all other
rights and remedies for default provided by the Uniform Commercial Code, as well
as any other applicable law and this Agreement, INCLUDING, WITHOUT LIMITATION,
THE RIGHT TO REPOSSESS, RENDER UNUSABLE AND/OR DISPOSE OF THE COLLATERAL WITHOUT
JUDICIAL PROCESS. The rights and remedies specified herein are cumulative and
are not exclusive of any rights or remedies which Bank would otherwise have.
With respect to such rights and remedies:
(a) Assembling Collateral; Storage; Use of Debtor's Name/Other Property.
Bank may require Debtor to assemble the Collateral and to make it
available to Bank at any convenient place designated by Bank. Debtor
recognizes that Bank will not have an adequate remedy in Law if this
obligation is breached and accordingly, Debtor's obligation to
assemble the Collateral shall be specifically enforceable. Bank shall
have the right to take immediate possession of said Collateral and
Debtor irrevocably authorizes Bank to enter any of the premises
wherever said Collateral shall be located, and to store, repair,
maintain, assemble, manufacture, advertise and sell, lease or dispose
of (by public sale or otherwise) the same on said premises until sold,
all without charge or rent to Bank. Bank is hereby granted an
irrevocable license to use, without charge, Debtor's equipment,
inventory, labels, patents, copyrights, franchises, names, trade
secrets, trade names, trademarks and advertising matter and any
property of a similar nature; and Debtor's rights under all licenses
and franchise agreements shall inure to Bank's benefit. Further,
Debtor releases Bank from obtaining a bond or surety with respect to
any repossession and/or disposition of the Collateral.
(b) Notice of Disposition. Written notice, when required by law, sent to
any address of Debtor in this Agreement, at least five (5)
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calendar days (counting the day of sending) before the date of a
proposed disposition of the Collateral is reasonable notice but less
notice may be reasonable under the circumstances. Notification to
account debtors by Bank shall not be deemed a disposition of the
Collateral. Notice of any record shall be deemed delivered when the
record has been (a) deposited in the United States Mail, postage
pre-paid, (b) received by overnight delivery service, (c) received by
telex, (d) received by Telecopy, (e) received through the internet, or
(f) when personally delivered.
(c) Possession of Collateral/Commercial Reasonableness. Bank shall not, at
any time, be obligated to either take or retain possession or control of
the Collateral. With respect to Collateral in the possession or control
of Bank, Debtor and Bank agree that as a standard for determining
commercial reasonableness, Bank need not liquidate, collect, sell or
otherwise dispose of any of the Collateral if Bank believes, in good
faith, that disposition of the Collateral would not be commercially
reasonable, would subject Bank to third-party claims or liability, that
other potential purchasers could be attracted or that a better price
could be obtained if Bank held the Collateral for up to 2 years. Bank
may sell Collateral without giving any warranties and may specifically
disclaim any warranties of title or the like. Furthermore, Bank may
sell the Collateral on credit (and reduce the Obligations only when
payment is received from the buyer), at wholesale and/or with or without
an agent or broker; and Bank need not complete, process, repair,
clean-up or otherwise prepare the Collateral prior to disposition. If
the purchaser fails to pay for the Collateral, Bank my resell the
Collateral and Debtor shall be credited with the cash proceeds of the
sale. Bank may comply with any applicable state or federal law
requirements in connection with a disposition of the Collateral and
compliance will not be considered to adversely affect the commercial
reasonableness of any sale of the Collateral.
(d) Waiver by Debtor. Bank has no obligation and Debtor waives any
obligation to attempt to satisfy the Obligations by collecting the
obligations from any third parties and Bank may release, modify or
waive any collateral provided by any third party to secure any of the
Obligations, all without affecting Bank's rights against Debtor. Debtor
further waives any obligation on the part of Bank to marshal any assets
in favor of Debtor or in payment of the Obligations. Notwithstanding any
provisions in this Agreement or any other agreement between Debtor and
Bank, Debtor does not waive any statutory rights except to the extent
that the waiver thereof is permitted by law.
(e) Waiver by Bank. Bank may permit Debtor to attempt to remedy any default
without waiving its rights and remedies hereunder, and Bank may waive
any default without waiving any other subsequent or prior default by
Debtor. Furthermore, delay on the part of Bank in exercising any right,
power or privilege hereunder or at law shall not operate as a waiver
thereof, nor shall any single or partial exercise of such right, power
or privilege preclude other exercise thereof or the exercise of any
other right, power or privilege. No waiver or suspension shall be deemed
to have occurred unless Bank has expressly agreed in writing specifying
such waiver or suspension.
ARTICLE VI. MISCELLANEOUS
All other provisions in the Loan Documents are expressly incorporated as a
part of this Agreement.
All documents attached hereto, including any appendices, schedules, riders,
and exhibits to this Agreement, are hereby expressly incorporated by reference.
IN WITNESS WHEREOF, the undersigned has/have executed this BUSINESS SECURITY
AGREEMENT as MARCH 18, 2002 ________________________.
(Individual Debtor) DYNATEM, INC.
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Debtor Name (Organization)
___________________________(SEAL) a CALIFORNIA Corporation
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Debtor Name N/A By /s/ Xxxxxxx Xxxxx
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___________________________(SEAL) Name and Title XXXXXXX XXXXX, PRESIDENT
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By /s/ Xxxxxx Xxxxxxx
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Debtor Name N/A Name and Title XXXXXX XXXXXXX, VICE PRESIDENT
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