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EXHIBIT 10.41
SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of March 4, 1997, is made by Bolder
Technologies Corporation (the "Borrower"), a Delaware corporation having its
principal place of business and chief executive office at 0000 Xxxx Xxxx, Xxxxx
Xxxxx, Xxxxxxxx 00000, in favor of Transamerica Business Credit Corporation, a
Delaware corporation (the "Lender"), having its principal office at Riverway
II, West Office Tower, 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Borrower has requested that the Lender make Loans to it
from time to time; and
WHEREAS, the Lender has agreed to make such Loans on the terms and
conditions of this Security Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the
Lender to extend credit, the Borrower hereby agrees with the Lender as follows:
SECTION 1. DEFINITIONS.
As used herein, the following terms shall have the following meanings,
and shall be equally applicable to both the singular and plural forms of the
terms defined:
Applicable Law shall mean the laws of the State of Illinois (or any other
jurisdiction whose laws are mandatorily applicable notwithstanding the parties'
choice of Illinois law) or the laws of the United States of America, whichever
laws allow the greater interest, as such laws now exist or may be changed or
amended or come into effect in the future.
Business Day shall mean any day other than a Saturday, Sunday or public holiday
or the equivalent for banks in New York City.
Code shall have the meaning specified in Section 8(d).
Collateral shall have the meaning specified in Section 2.
Collateral Access Agreement shall mean any landlord waiver, mortgagee waiver,
bailee letter or similar acknowledgement of any warehouseman or processor in
possession of any Equipment, in each case substantially in the form of Exhibit
A.
Effective Date shall mean the date on which all of the conditions specified in
Section 3.3 shall have been satisfied.
Equipment shall have the meaning specified in Section 2.
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Event of Default shall mean any event specified in Section 7.
Financial Statements shall have the meaning specified in Section 6.1.
GAAP shall mean generally accepted accounting principles in the United States
of America, as in effect from time to time.
Loans shall mean the loans and financial accommodations made by the Lender to
the Borrower in accordance with the terms of this Security Agreement and the
Notes.
Loan Documents shall mean, collectively, this Security Agreement, the Notes and
all other documents, agreements, certificates, instruments and opinions
executed and delivered in connection herewith and therewith, as the same may be
modified, extended, restated or supplemented from time to time.
Material Adverse Change shall mean, with respect to any Person, a material
adverse change in the business, operations, results of operations, assets,
liabilities or financial condition of such Person taken as a whole, which the
Lender reasonably believes will materially impair the Borrower's ability to
perform its obligations under the Loan Documents or of the Lender to enforce
the Obligations or realize upon the Collateral.
Material Adverse Effect shall mean, with respect to any Person, a material
adverse effect on the business, operations, results of operations, assets,
liabilities or financial condition of such Person taken as a whole, which the
Lender reasonably believes will materially impair the Borrower's ability to
perform its obligations under the Loan Documents or of the Lender to enforce
the Obligations or realize upon the Collateral.
Note shall mean each Promissory Note made by the Borrower in favor of the
Lender, as amended, supplemented or otherwise modified from time to time, in
each case substantially in the form of Exhibit B.
Obligations shall mean all indebtedness, obligations and liabilities of the
Borrower under the Notes and under this Security Agreement, whether on account
of principal, interest, indemnities, fees (including, without limitation,
attorneys' fees, remarketing fees, origination fees, collection fees and all
other professionals' fees), costs, expenses, taxes or otherwise.
Permitted Liens shall mean such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been
commenced: (a) liens for taxes, assessments and other governmental charges or
levies or the claims or demands of landlords, carriers, warehousemen,
mechanics, laborers, materialmen and other like Persons arising by operation of
law in the ordinary course of business for sums
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which are not yet due and payable, or liens which are being contested in good
faith by appropriate proceedings diligently conducted and with respect to which
adequate reserves are maintained to the extent required by GAAP; (b) deposits
or pledges to secure the payment of workmen's compensation, unemployment
insurance or other social security benefits or obligations, public or statutory
obligations, surety or appeal bonds, bid or performance bonds, or other
obligations of a like nature incurred in the ordinary course of business; (c)
licenses, restrictions or covenants for or on the use of the Equipment which do
not materially impair either the use of the Equipment in the operation of the
business of the Borrower or the value of the Equipment; and (d) attachment or
judgment liens that do not constitute an Event of Default.
Person shall mean any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
institution, entity, party or government (including any division, agency or
department thereof), and the successors, heirs and assigns of each.
Schedule shall mean each Schedule in the form of Schedule A hereto delivered by
the Borrower to the Lender from time to time.
Security Agreement shall mean this Security Agreement together with all
schedules and exhibits hereto, as amended, supplemented or otherwise modified
from time to time.
Solvent means, with respect to any Person, that as of the date as to which such
Person's solvency is measured:
(a) it is solvent under any applicable state or federal statute
and if more than one statute is applicable then under the statute applied by
the Lender in its sole discretion; and
(b) it is able generally to meet its debts as they mature.
Taxes shall have the meaning specified in Section 5.5.
Tenant Improvement shall mean any item of Equipment designated as a tenant
improvement on Schedule A hereto or on any other Schedule delivered from time
to time under the terms of this Security Agreement.
SECTION 2. CREATION OF SECURITY INTEREST; COLLATERAL. The Borrower
hereby assigns and grants to the Lender a continuing general, first priority
lien on and security interest in, all the Borrower's right, title and interest
in and to the collateral described in the next sentence (the "Collateral") to
secure the payment and performance of all the Obligations. The Collateral
consists of all equipment set forth on Schedule A hereto and on
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any other Schedule delivered by the Borrower from time to time under the terms
of this Security Agreement (the "Equipment"), together with all present and
future additions, parts, accessories, attachments, substitutions, repairs,
improvements and replacements thereof or thereto, and any and all proceeds
thereof, including, without limitation, proceeds of insurance and all manuals,
warranties and records in connection therewith, all rights against suppliers,
warrantors, manufacturers, sellers or others in connection therewith, and
together with all substitutes for any of the foregoing.
SECTION 3. THE CREDIT FACILITY.
SECTION 3.1. BORROWINGS. Each request for a Loan, other than
the initial Loan, shall be made on notice, given not later than three Business
Days prior to the date of the proposed borrowing and such notice shall specify
the requested date that the Loan be made, the aggregate amount of such Loan and
the account to which the proceeds of such Loan shall be transmitted. Each Loan
shall be in an amount not less than $100,000, and in no event shall the sum of
the aggregate Loans made exceed the amount of the Lender's written commitment
to the Borrower in effect from time to time. Notwithstanding anything herein
to the contrary, the Lender shall be obligated to make the initial Loan and
each other Loan only after the Lender, in its sole discretion, determines that
the applicable conditions for borrowing contained in Sections 3.3 and 3.4 are
satisfied, in which case such Loan shall be made on the proposed date set forth
in the notice described in this Section 3.1.
SECTION 3.2. APPLICATION OF PROCEEDS. The Borrower shall not
directly or indirectly use any proceeds of the Loans, or cause, assist, suffer
or permit the use of any proceeds of the Loans, for any purpose other than for
the purchase, acquisition, installation or upgrading of Equipment or the
reimbursement of the Borrower for its purchase, acquisition, installation or
upgrading of Equipment.
SECTION 3.3. CONDITIONS TO INITIAL LOAN.
(a) The obligation of the Lender to make the initial Loan
is subject to the Lender's receipt of the following, each dated the date of the
initial Loan or as of an earlier date acceptable to the Lender, in form and
substance satisfactory to the Lender and its counsel:
(i) completed requests for information (Form UCC-11)
listing all effective Uniform Commercial Code financing
statements naming the Borrower as debtor and all tax lien, judgment and
litigation searches for the Borrower as the Lender shall deem necessary
or desirable;
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(ii) Uniform Commercial Code financing statements
(Form UCC-1) duly executed by the Borrower (naming the Lender
as secured party and the Borrower as debtor and in form acceptable for
filing in all jurisdictions that the Lender deems necessary or
desirable to perfect the security interests granted to it hereunder)
and, if applicable, termination statements or other releases duly filed
in all jurisdictions that the Lender deems necessary or desirable to
perfect and protect the priority of the security interests granted to
it hereunder in the Equipment related to such initial Loan;
(iii) a Note duly executed by the Borrower evidencing
the amount of such Loan;
(iv) a Collateral Access Agreement duly executed by
the lessor or mortgagee, as the case may be, of each premises where
the Equipment is located;
(v) certificates of insurance required under Section
5.4 of this Security Agreement together with loss payee
endorsements for all such policies naming the Lender as lender loss
payee and as an additional insured;
(vi) a copy of the resolutions of the Board of
Directors of the Borrower (or a unanimous consent of directors
in lieu thereof) authorizing the execution, delivery and performance
of this Security Agreement, the other Loan Documents, and the
transactions contemplated hereby and thereby, attached to which is a
certificate of the Secretary or an Assistant Secretary of the Borrower
certifying (A) that the copy of the resolutions is true, complete and
accurate, that such resolutions have not been amended or modified
since the date of such certification and are in full force and effect
and (B) the incumbency, names and true signatures of the officers of
the Borrower authorized to sign the Loan Documents to which it is a
party;
(vii) the opinion of counsel for the Borrower covering
such matters incident to the transactions contemplated by this
Security Agreement as the Lender may reasonably require; and
(viii) such other agreements and instruments as the
Lender deems necessary in its reasonable discretion
in connection with the transactions contemplated hereby.
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(b) There shall be no pending or, to the knowledge of the
Borrower after reasonable inquiry, threatened litigation, proceeding or other
action (i) seeking an injunction or other restraining order, damages or other
relief with respect to the transactions contemplated by this Security Agreement
or the other Loan Documents or thereby or (ii) which affects or could affect
the business, prospects, operations, assets, liabilities or condition
(financial or otherwise) of the Borrower, except, in the case of clause (ii),
where such litigation, proceeding or other action could not be expected to have
a Material Adverse Effect on the Borrower.
(c) The Borrower shall have paid all reasonable fees and
expenses required to be paid by it to the Lender.
(d) The security interests granted in favor of the Lender
under this Security Agreement in the Equipment related to the initial Loan
shall, upon the proper completion of all required filings of financing
statements, have been duly perfected and shall constitute first priority liens
(to the extent such security interests can be perfected by the filing of
Uniform Commercial Code financing statements (Form UCC-1)).
(e) Since October 31, 1996, there shall have been no
change, event, occurrence or development or event involving a prospective
change which has had or could reasonably be expected to have a Material Adverse
Effect, and that all information provided by or on behalf of the Borrower to
the Lender hereunder or in connection herewith is true and correct in all
respects.
SECTION 3.4. CONDITIONS PRECEDENT TO EACH LOAN. The
obligation of the Lender to make each Loan is subject to the satisfaction of
the following conditions precedent:
(a) the Lender shall have received the documents,
agreements and instruments set forth in Section 3.3(a)(i) through (iii) and (v)
applicable to such Loan, each in form and substance satisfactory to the Lender
and its counsel and each dated the date of such Loan or as of an earlier date
acceptable to the Lender;
(b) the Lender shall have received a Schedule of the
Equipment related to such Loan, in form and substance satisfactory to the
Lender and its counsel, and the security interests granted in favor of the
Lender under this Security Agreement in such Equipment shall, upon the proper
completion of all required filings of financing statements, have been duly
perfected and shall constitute first priority liens (to the extent that such
security interests can be perfected by the filing of Uniform Commercial Code
financing statements (Form UCC-1));
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(c) all representations and warranties contained in
Section 4 of this Security Agreement and all representations and warranties
contained in the other Loan Documents shall be true and correct on and as of
the date of such Loan as if then made, other than representations and
warranties that expressly relate solely to an earlier date, in which case they
shall have been true and correct as of such earlier date; and
(d) no Event of Default or event which with the giving of
notice or the passage of time, or both, would constitute an Event of Default
shall have occurred and be continuing or would result from the making of the
requested Loan as of the date of such request.
SECTION 4. THE BORROWER'S REPRESENTATIONS AND WARRANTIES.
SECTION 4.1. GOOD STANDING; QUALIFIED TO DO BUSINESS. The
Borrower (a) is duly organized, validly existing and in good standing under the
laws of the State of its organization, (b) has the power and authority to own
its properties and assets and to transact the businesses in which it is
presently, or proposes to be, engaged and (c) is duly qualified and authorized
to do business and is in good standing in every jurisdiction in which the
failure to be so qualified could have a Material Adverse Effect on (i) the
Borrower, (ii) the Borrower's ability to perform its obligations under the Loan
Documents or (iii) the rights of the Lender hereunder.
SECTION 4.2. DUE EXECUTION, ETC. The execution, delivery and
performance by the Borrower of each of the Loan Documents to which it is a
party are within the powers of the Borrower, do not contravene the
organizational documents, if any, of the Borrower, and do not (a) to the best
of the Borrower's knowledge after reasonable inquiry, violate any law or
regulation, or any order or decree of any court or governmental authority, (b)
conflict with or result in a breach of, or constitute a default under, any
material indenture, mortgage or deed of trust or any material lease, agreement
or other instrument binding on the Borrower or any of its properties, or (c) to
the best of the Borrower's knowledge after reasonable inquiry, require the
consent, authorization by or approval of or notice to or filing or registration
with any governmental authority or other Person. This Security Agreement is,
and each of the other Loan Documents to which the Borrower is or will be a
party, when delivered hereunder or thereunder, will be, the legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally
and by general principles of equity.
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SECTION 4.3. SOLVENCY; NO LIENS. The Borrower is Solvent and
will be Solvent upon the completion of all transactions contemplated to occur
hereunder (including, without limitation, the Loan to be made on the Effective
Date); the security interests granted herein constitute and shall at all times
constitute the first and only liens on the Collateral other than Permitted
Liens (to the extent that such security interests can be perfected by the
filing of Uniform Commercial Code financing statements (Form UCC-1)); and the
Borrower is, or will be at the time additional Collateral is acquired by it,
the absolute owner of the Collateral with full right to pledge, sell, consign,
transfer and create a security interest therein, free and clear of any and all
claims or liens in favor of any other Person other than Permitted Liens.
SECTION 4.4. NO JUDGMENTS, LITIGATION. No judgments are
outstanding against the Borrower nor is there now pending or, to the best of
the Borrower's knowledge after reasonable inquiry, threatened any litigation,
contested claim, or governmental proceeding by or against the Borrower except
judgments and pending or threatened litigation, contested claims and
governmental proceedings which would not, in the aggregate, have a Material
Adverse Effect on the Borrower.
SECTION 4.5. NO DEFAULTS. The Borrower is not in default or
has not received a notice of default under any material contract, lease, or
commitment to which it is a party or by which it is bound. The Borrower knows
of no dispute regarding any contract, lease, or commitment to which it is a
party or by which it is bound that could have a Material Adverse Effect on the
Borrower.
SECTION 4.6. COLLATERAL LOCATIONS. On the date hereof, each
item of the Collateral is located at the place of business specified in the
applicable Schedule.
SECTION 4.7. NO EVENTS OF DEFAULT. No Event of Default has
occurred and is continuing nor has any event occurred which, with the giving of
notice or the passage of time, or both, would constitute an Event of Default.
SECTION 4.8. NO LIMITATION ON LENDER'S RIGHTS. Except as
permitted herein, none of the Collateral is subject to contractual obligations
that may restrict or inhibit the Lender's rights or abilities to sell or
dispose of the Collateral or any part thereof after the occurrence of an Event
of Default.
SECTION 4.9. PERFECTION AND PRIORITY OF SECURITY INTEREST.
This Security Agreement creates a valid and, upon the proper completion of all
required filings of financing statements, perfected first priority and
exclusive security interest in the Collateral (to the extent that a security
interest in the Collateral can be perfected by the filing of
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Uniform Commercial Code financing statements (Form UCC-1)), securing the
payment of all the Obligations.
SECTION 4.10. MODEL AND SERIAL NUMBERS. To the extent a
model or serial number is applicable, the Schedules set forth the true and
correct model number and serial number of each item of Equipment that
constitutes Collateral.
SECTION 4.11. ACCURACY AND COMPLETENESS OF INFORMATION. All
data, reports and information heretofore, contemporaneously or hereafter
furnished by or on behalf of the Borrower in writing to the Lender or for
purposes of or in connection with this Security Agreement or any other Loan
Document, or any transaction contemplated hereby or thereby, are or will be
true and accurate in all material respects on the date as of which such data,
reports and information are dated or certified and not incomplete by omitting
to state any material fact necessary to make such data, reports and information
not misleading at such time. There are no facts now known to the Borrower
which individually or in the aggregate would reasonably be expected to have a
Material Adverse Effect and which have not been specified herein, in the
Financial Statements, or in any certificate, opinion or other written statement
previously furnished by the Borrower to the Lender.
SECTION 5. COVENANTS OF THE BORROWER.
SECTION 5.1. EXISTENCE, ETC. The Borrower will maintain its
corporate existence, its current yearly accounting cycle, and shall maintain in
full force and effect all licenses, bonds, franchises, leases, trademarks,
patents, contracts and other rights necessary or desirable to the profitable
conduct of its business unless the failure to do so could not reasonably be
expected to have a Material Adverse Effect and shall comply with all applicable
laws and regulations of any federal, state or local governmental authority,
except for such laws and regulations the violations of which would not, in the
aggregate, have a Material Adverse Effect on the Borrower.
SECTION 5.2. NOTICE TO THE LENDER. As soon as possible, and
in any event within five days after the Borrower learns of the following, the
Borrower will give written notice to the Lender of (a) any proceeding
instituted or threatened to be instituted by or against the Borrower in any
federal, state, local or foreign court or before any commission or other
regulatory body (federal, state, local or foreign) involving a sum, together
with the sum involved in all other similar proceedings, in excess of $50,000 in
the aggregate, (b) any contract to which the Borrower is a party or by which it
is bound that is terminated or amended and which has had or could reasonably be
expected to have a Material Adverse Effect, (c) the occurrence of any Material
Adverse Change and (d) the occurrence of any Event of Default or event or
condition which, with notice
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or lapse of time or both, would constitute an Event of Default, together with a
statement of the action which the Borrower has taken or proposes to take with
respect thereto.
SECTION 5.3. MAINTENANCE OF BOOKS AND RECORDS. The Borrower
will maintain books and records pertaining to the Collateral in accordance with
GAAP consistently applied. The Borrower agrees that the Lender or its agents
may enter upon the Borrower's premises at any time and from time to time during
normal business hours, and at any time upon the occurrence and continuance of
an Event of Default, for the purpose of inspecting the Collateral and any and
all records pertaining thereto.
SECTION 5.4. INSURANCE. The Borrower will maintain insurance
on the Collateral under such policies of insurance, with nationally reputable
insurers, in such amounts and covering such risks as are at all times
reasonably satisfactory to the Lender. All such policies shall be made payable
to the Lender, in case of loss, under a standard non-contributory "lender" or
"secured party" clause and are to contain such other provisions as the Lender
may reasonably require to protect the Lender's interests in the Collateral and
to any payments to be made under such policies. Certificates of insurance
policies are to be delivered to the Lender, premium prepaid, with the loss
payable endorsement in the Lender's favor, and shall provide for not less than
thirty days' prior written notice to the Lender, of any alteration or
cancellation of coverage. If the Borrower fails to maintain such insurance,
the Lender may arrange for (at the Borrower's expense and without any
responsibility on the Lender's part for) obtaining the insurance. Unless the
Lender shall otherwise agree with the Borrower in writing, the Lender shall
have the sole right, in the name of the Lender or the Borrower, to file claims
under any insurance policies, to receive and give acquittance for any payments
that may be payable thereunder, and to execute any endorsements, receipts,
releases, assignments, reassignments or other documents that may be necessary
to effect the collection, compromise or settlement of any claims under any such
insurance policies.
SECTION 5.5. TAXES. The Borrower will pay, when due, all
taxes, assessments, claims and other charges ("Taxes") lawfully levied or
assessed against the Borrower or the Collateral other than taxes that are being
diligently contested in good faith by the Borrower by appropriate proceedings
promptly instituted and for which an adequate reserve is being maintained by
the Borrower in accordance with GAAP. If any Taxes remain unpaid after the
date fixed for the payment thereof, or if any lien shall be claimed therefor,
then, without notice to the Borrower, but on the Borrower's behalf, the Lender
may pay such Taxes, and the amount thereof shall be included in the
Obligations.
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SECTION 5.6. BORROWER TO DEFEND COLLATERAL AGAINST CLAIMS;
FEES ON COLLATERAL. The Borrower will defend the Collateral against all claims
and demands of all Persons at any time claiming the same or any interest
therein. The Borrower will not permit any notice creating or otherwise
relating to liens on the Collateral or any portion thereof to exist or be on
file in any public office other than Permitted Liens. The Borrower shall
promptly pay, when payable, all transportation, storage and warehousing charges
and license fees, registration fees, assessments, charges, permit fees and
taxes (municipal, state and federal) which may now or hereafter be imposed upon
the ownership, leasing, renting, possession, sale or use of the Collateral,
other than taxes on or measured by the Lender's income and fees, assessments,
charges and taxes which are being contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate reserves
are maintained to the extent required by GAAP.
SECTION 5.7. NO CHANGE OF LOCATION, STRUCTURE OR IDENTITY.
The Borrower will not (a) change the location of its chief executive office or
establish any place of business other than those specified herein or (b) move
or permit the movement of any item of Collateral from the location specified in
the applicable Schedule, except that the Borrower may change its chief
executive office and keep Collateral at other locations within the United
States provided that the Borrower has delivered to the Lender (i) prior written
notice thereof and (ii) duly executed financing statements and other agreements
and instruments, including, without limitation, Collateral Access Agreements,
(all in form and substance satisfactory to the Lender) necessary or, in the
opinion of the Lender, desirable to perfect and maintain in favor of the Lender
a first priority security interest in the Collateral. Notwithstanding anything
to the contrary in the immediately preceding sentence, the Borrower may keep
any Collateral consisting of motor vehicles or rolling stock at any location in
the United States provided that the Lender's security interest in any such
Collateral is conspicuously marked on the certificate of title thereof and the
Borrower has complied with the provisions of Section 5.9.
SECTION 5.8. USE OF COLLATERAL; LICENSES; REPAIR. The
Collateral shall be used by competent, qualified personnel in connection with
the Borrower's business purposes, for the purpose for which the Collateral was
designed and in accordance with applicable operating instructions, laws and
government regulations, and the Borrower shall use every reasonable precaution
to prevent loss or damage to the Collateral from fire and other hazards. The
Collateral shall not be used or operated for personal, family or household
purposes. The Borrower shall procure and maintain in effect all orders,
licenses, certificates, permits, approvals and consents required by federal,
state or local laws or by any governmental body, agency or authority in
connection with the delivery, installation, use
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and operation of the Collateral. The Borrower shall keep all of the Equipment
in a satisfactory state of repair and satisfactory operating condition in
accordance with industry standards, and will make all repairs and replacements
when and where necessary and practical. The Borrower will not waste or destroy
the Equipment or any part thereof, and will not be negligent in the care or use
thereof. Notwithstanding the preceding two sentences, the Borrower may, in the
ordinary course of its business, make alterations or modifications to its
premises that result in the destruction or waste of a Tenant Improvement if (i)
the Borrower gives the Lender prior written notice of such proposed alteration
or modification and (ii) such alteration or modification would not reasonably
be expected to have a material adverse effect on the aggregate value of the
Collateral or the amount which the Lender would be likely to receive in the
liquidation of the Collateral.
SECTION 5.9. FURTHER ASSURANCES. The Borrower will, promptly
upon request by the Lender, execute and deliver or use its reasonable efforts
to obtain any document required by the Lender (including, without limitation,
warehouseman or processor disclaimers, mortgagee waivers, landlord disclaimers,
or subordination agreements with respect to the Obligations and the
Collateral), give any notices, execute and file any financing statements,
mortgages or other documents (all in form and substance satisfactory to the
Lender), xxxx any chattel paper, deliver any chattel paper or instruments to
the Lender, and take any other actions that are necessary or, in the opinion of
the Lender, desirable to perfect or continue the perfection and the first
priority of the Lender's security interest in the Collateral, to protect the
Collateral against the rights, claims, or interests of any Persons, or to
effect the purposes of this Security Agreement. The Borrower hereby authorizes
the Lender to file one or more financing or continuation statements, and
amendments thereto, relating to all or any part of the Collateral without the
signature of the Borrower where permitted by law. A carbon, photographic or
other reproduction of this Security Agreement or any financing statement
covering the Collateral or any part thereof shall be sufficient as a financing
statement where permitted by law. To the extent required under this Security
Agreement, the Borrower will pay all reasonable costs incurred in connection
with any of the foregoing.
SECTION 5.10. NO DISPOSITION OF COLLATERAL. The Borrower
will not in any way hypothecate or create or permit to exist any lien, security
interest, charge or encumbrance on or other interest in any of the Collateral,
except for the lien and security interest granted hereby and Permitted Liens
which are junior to the lien and security interest of the Lender and the
Borrower will not sell, transfer, assign, pledge, collaterally assign, exchange
or otherwise dispose of (other than in the case of Tenant Improvements as
provided in Section 5.8) any of the Collateral. In the event the Collateral,
or any part thereof, is
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sold, transferred, assigned, exchanged, or otherwise disposed of in violation
of these provisions, the security interest of the Lender shall continue in such
Collateral or part thereof notwithstanding such sale, transfer, assignment,
exchange or other disposition, and the Borrower will hold the proceeds thereof
in a separate account for the benefit of the Lender. Following such a sale,
the Borrower will transfer such proceeds to the Lender in kind.
SECTION 5.11. NO LIMITATION ON LENDER'S RIGHTS. The Borrower
will not enter into any contractual obligations which may restrict or inhibit
the Lender's rights or ability to sell or otherwise dispose of the Collateral
or any part thereof.
SECTION 5.12. PROTECTION OF COLLATERAL. Upon notice to the
Borrower (provided that if an Event of Default has occurred and is continuing
the Lender need not give any notice), the Lender shall have the right at any
time to make any payments and do any other acts the Lender may deem necessary
to protect its security interests in the Collateral, including, without
limitation, the rights to satisfy, purchase, contest or compromise any
encumbrance, charge or lien which, in the reasonable judgment of the Lender,
appears to be prior to or superior to the security interests granted hereunder,
and appear in and defend any action or proceeding purporting to affect its
security interests in, or the value of, any of the Collateral. The Borrower
hereby agrees to reimburse the Lender for all reasonable payments made and
expenses incurred under this Security Agreement including fees, expenses and
disbursements of attorneys and paralegals (including the allocated costs of
in-house counsel) acting for the Lender, including any of the foregoing
payments under, or acts taken to protect its security interests in, any of the
Collateral, which amounts shall be secured under this Security Agreement, and
agrees it shall be bound by any payment made or act taken by the Lender
hereunder absent the Lender's gross negligence or willful misconduct. The
Lender shall have no obligation to make any of the foregoing payments or
perform any of the foregoing acts.
SECTION 5.13. DELIVERY OF ITEMS. The Borrower will promptly
(but in no event later than three Business Days) after its receipt thereof,
deliver to the Lender any documents or certificates of title issued with
respect to any property included in the Collateral, and any promissory notes,
letters of credit or instruments related to or otherwise in connection with any
property included in the Collateral, which in any such case come into the
possession of the Borrower, or shall cause the issuer thereof to deliver any of
the same directly to the Lender, in each case with any necessary endorsements
in favor of the Lender.
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14
SECTION 5.14. SOLVENCY. The Borrower shall be and remain
Solvent at all times.
SECTION 5.15. FUNDAMENTAL CHANGES. The Borrower shall not
(a) amend or modify its name, unless the Borrower delivers to the Lender thirty
days prior to any such proposed amendment or modification written notice of
such amendment or modification and within ten days before such amendment or
modification delivers executed Uniform Commercial Code financing statements (in
form and substance satisfactory to the Lender), (b) merge or consolidate with
any other entity unless (i) after giving effect to such merger or consolidation
the Borrower, if it is the surviving entity, remains in compliance with the
terms and conditions of each Loan Document and if the survivor is not the
Borrower, then such surviving entity assumes all of the obligations of the
Borrower under each Loan Document, including, without limitation, all of the
Borrower's payment obligations, pursuant to assignment documentation acceptable
to the Lender in its sole discretion, (ii) the ability of such surviving entity
to perform the obligations under each Loan Document is no worse than that of
the Borrower immediately before such merger or consolidation and (iii) such
surviving entity delivers Uniform Commercial Code financing statements
(Form UCC-1) duly executed by the surviving entity (naming the Lender as
secured party and the surviving entity as debtor and in form acceptable for
filing in all jurisdictions that the Lender deems necessary or desirable to
perfect the security interests granted to it hereunder) and, if applicable,
termination statements or other releases duly filed in all jurisdictions that
the Lender deems necessary or desirable to perfect and protect the priority of
the security interests granted to the Borrower hereunder or (c) sell or dispose
of all or substantially all of its assets except as may be permitted pursuant
to subsection (b) of this Section 5.15 or of Section 5.8.
SECTION 5.16. ADDITIONAL REQUIREMENTS. The Borrower shall
take all such further actions and execute all such further documents and
instruments as the Lender may reasonably request.
SECTION 6. FINANCIAL STATEMENTS. Until the payment and satisfaction
in full of all Obligations, the Borrower shall deliver to the Lender the
following financial information:
SECTION 6.1. ANNUAL FINANCIAL STATEMENTS. As soon as
available, but not later than 120 days after the end of each fiscal year of the
Borrower and its consolidated subsidiaries, the consolidated balance sheet,
income statement and statements of cash flows and shareholders equity for the
Borrower and its consolidated subsidiaries (the "Financial
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15
Statements") for such year, reported on by independent certified public
accountants without an adverse qualification.
SECTION 6.2. QUARTERLY FINANCIAL STATEMENTS. As soon as
available, but not later than 60 days after the end of each of the first three
fiscal quarters in any fiscal year of the Borrower and its consolidated
subsidiaries, the Financial Statements for such fiscal quarter, together with a
certification duly executed by a responsible officer of the Borrower that such
Financial Statements have been prepared in accordance with GAAP and are fairly
stated in all material respects (subject to normal year-end audit adjustments).
SECTION 7. EVENTS OF DEFAULT. The occurrence of any of the following
events shall constitute an Event of Default hereunder:
(a) the Borrower shall fail to pay within ten days of
when due any amount required to be paid by the Borrower under or in connection
with any Note and this Security Agreement;
(b) any representation or warranty made by the Borrower
under or in connection with any Loan Document or any Financial Statement shall
prove to have been false or incorrect in any material respect when made;
(c) the Borrower shall fail to perform or observe (i) any
of the terms, covenants or agreements contained in Section 5.4, 5.7, 5.10, 5.14
or 5.15 hereof or (ii) any other term, covenant or agreement contained in any
Loan Document (other than the other Events of Default specified in this Section
7) and such failure remains unremedied for the earlier of fifteen days from (A)
the date on which the Lender has given the Borrower written notice of such
failure and (B) the date on which the Borrower knew or should have known of
such failure, provided that, so long as such failure is capable of being cured
and the Borrower has promptly commenced and is diligently continuing with its
attempt to cure, such default shall not constitute an Event of Default for
sixty days after such notice;
(d) except through the action or inaction of the Lender,
any provision of any Loan Document to which the Borrower is a party shall for
any reason cease to be valid and binding on the Borrower, or the Borrower shall
so state;
(e) dissolution, liquidation, winding up or cessation of
the Borrower's business, or the failure of the Borrower generally to pay its
debts as they mature; or the admission in writing by the Borrower of its
inability generally to pay its debts as they mature;
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(f) the commencement by or against the Borrower of any
bankruptcy, insolvency, arrangement, reorganization, receivership or similar
proceedings under any federal or state law and, in the case of any such
involuntary proceeding, such proceeding remains undismissed or unstayed for
forty-five days following the commencement thereof, or any action by the
Borrower is taken authorizing any such proceedings;
(g) an assignment for the benefit of creditors is made by
the Borrower, whether voluntary or involuntary, or the appointment of a
trustee, custodian, receiver or similar official for the Borrower or for any
substantial property of the Borrower; or any action by the Borrower authorizing
any such proceeding;
(h) the Borrower suffers or sustains a Material Adverse
Change;
(i) any tax lien, other than a Permitted Lien, is filed
of record against the Borrower and (i) adequate reserves for such lien are not
maintained to the extent required by GAAP or (ii) such lien is not discharged
within fifteen Business Days;
(j) any judgment which has had or could reasonably be
expected to have a Material Adverse Effect and such judgment shall not be
stayed, vacated, bonded or discharged within sixty days; or
(k) except through the action or inaction of the Lender,
any material covenant, agreement or obligation, as determined in the sole
discretion of the Lender, made by the Borrower and contained in or evidenced by
any of the Loan Documents shall cease to be enforceable, or shall be determined
to be unenforceable, in accordance with its terms, or the Borrower shall deny
or disaffirm the Obligations under any of the Loan Documents or any liens
granted in connection therewith; or any liens granted on any of the Collateral
in favor of the Lender shall be determined to be void, voidable or invalid, or
are not given the priority contemplated by this Security Agreement.
SECTION 8. REMEDIES. If any Event of Default shall have occurred and
be continuing:
(a) The Lender may, without prejudice to any of its other
rights under any Loan Document or Applicable Law, declare all Obligations to be
immediately due and payable (except with respect to any Event of Default set
forth in Section 7(f) hereof, in which case all Obligations shall automatically
become immediately due and payable without necessity of any declaration)
without presentment, representation, demand of payment or protest, which are
hereby expressly waived.
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(b) The Lender may take possession of the Collateral and,
for that purpose may enter, with the aid and assistance of any person or
persons, any premises where the Collateral or any part hereof is, or may be
placed, and remove the same.
(c) The obligation of the Lender, if any, to make
additional Loans or financial accommodations of any kind to the Borrower shall
immediately terminate.
(d) The Lender may exercise in respect of the Collateral,
in addition to other rights and remedies provided for herein (or in any Loan
Document) or otherwise available to it, all the rights and remedies of a
secured party under the applicable Uniform Commercial Code (the "Code") whether
or not the Code applies to the affected Collateral and also may (i) require the
Borrower to, and the Borrower hereby agrees that it will at its expense and
upon request of the Lender forthwith, assemble all or part of the Collateral
(other than Tenant Improvements) as directed by the Lender and make it
available to the Lender at a place to be designated by the Lender that is
reasonably convenient to both parties and (ii) without notice except as
specified below, sell the Collateral or any part thereof in one or more parcels
at public or private sale, at any of the Lender's offices or elsewhere, for
cash, on credit or for future delivery, and upon such other terms as the Lender
may deem commercially reasonable. The Borrower agrees that, to the extent
notice of sale shall be required by law, at least ten days' notice to the
Borrower of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Lender shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Lender may adjourn any public or private
sale from time to time by announcement at the time and place fixed therefor,
and such sale may, without further notice, be made at the time and place to
which it was so adjourned.
(e) All cash proceeds received by the Lender in respect
of any sale of, collection from, or other realization upon all or any part of
the Collateral may, in the discretion of the Lender, be held by the Lender as
collateral for, or then or at any time thereafter applied in whole or in part
by the Lender against, all or any part of the Obligations in such order as the
Lender shall elect. Any surplus of such cash or cash proceeds held by the
Lender and remaining after the full and final payment of all the Obligations
shall be paid over to the Borrower or to such other Person to which the Lender
may be required under applicable law, or directed by a court of competent
jurisdiction, to make payment of such surplus.
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SECTION 9. MISCELLANEOUS PROVISIONS.
SECTION 9.1. NOTICES. Except as otherwise provided herein,
all notices, approvals, consents, correspondence or other communications
required or desired to be given hereunder shall be given in writing and shall
be delivered by overnight courier, hand delivery or certified or registered
mail, postage prepaid, if to the Lender, then to Technology Finance Division,
00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Assistant
Vice President, Lease Administration, with a copy to the Lender at Riverway II,
West Office Tower, 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Legal Department or such other address as shall be designated by
the Lender to the Borrower in accordance herewith, and if to the Borrower, then
to 0000 Xxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxx 00000, Attention: Chief Financial
Officer, or such other address as shall be designated by the Borrower to the
Lender in accordance herewith. All such notices and correspondence shall be
effective when received.
SECTION 9.2. HEADINGS. The headings in this Security
Agreement are for purposes of reference only and shall not affect the meaning
or construction of any provision of this Security Agreement.
SECTION 9.3. ASSIGNMENTS. The Borrower shall not have the
right to assign any Note or this Security Agreement unless the Lender shall
otherwise have given the Borrower prior written consent and the Borrower and
its assignee shall have delivered assignment documentation in form and
substance satisfactory to the Lender in its reasonable discretion or such
assignment is made pursuant to Section 5.15(b). Upon notice to the Borrower,
the Lender may assign its rights and delegate its obligations under any Note or
this Security Agreement, provided, however, that the Lender's failure to give
such notice shall not affect the validity or the enforceability of the
assignment.
SECTION 9.4. AMENDMENTS, WAIVERS AND CONSENTS. Any amendment
or waiver of any provision of this Security Agreement and any consent to any
departure by the Borrower from any provision of this Security Agreement shall
be effective only by a writing signed by the Lender and shall bind and benefit
the Borrower and the Lender and their respective successors and assigns,
subject, in the case of the Borrower, to the first sentence of Section 9.3.
SECTION 9.5. INTERPRETATION OF AGREEMENT. Time is of the
essence in each provision of this Security Agreement of which time is an
element. All terms not defined herein or in a Note shall have the meaning set
forth in the applicable Code, except where the context otherwise requires. To
the extent a term or provision of this Security Agreement conflicts with any
Note, or any term or provision thereof, and is not dealt with herein with more
specificity, this Security Agreement shall
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control with respect to the subject matter of such term or provision.
Acceptance of or acquiescence in a course of performance rendered under this
Security Agreement shall not be relevant in determining the meaning of this
Security Agreement even though the accepting or acquiescing party had knowledge
of the nature of the performance and opportunity for objection.
SECTION 9.6. CONTINUING SECURITY INTEREST. This Security
Agreement shall create a continuing security interest in the Collateral and
shall (i) remain in full force and effect until the indefeasible payment in
full of the Obligations, (ii) be binding upon the Borrower and its successors
and assigns and (iii) inure, together with the rights and remedies of the
Lender hereunder, to the benefit of the Lender and its successors, transferees
and assigns.
SECTION 9.7. REINSTATEMENT. To the extent permitted by law,
this Security Agreement and the rights and powers granted to the Lender
hereunder and under the Loan Documents shall continue to be effective or be
reinstated if at any time any amount received by the Lender in respect of the
Obligations is rescinded or must otherwise be restored or returned by the
Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or upon the appointment of any receiver,
intervenor, conservator, trustee or similar official for the Borrower or any
substantial part of its assets, or otherwise, all as though such payments had
not been made.
SECTION 9.8. SURVIVAL OF PROVISIONS. All representations,
warranties and covenants of the Borrower contained herein shall survive the
execution and delivery of this Security Agreement, and shall terminate only
upon the full and final payment and performance by the Borrower of the
Obligations secured hereby.
SECTION 9.9. INDEMNIFICATION. The Borrower agrees to
indemnify and hold harmless the Lender and its directors, officers, agents,
employees and counsel from and against any and all costs, expenses, claims, or
liability incurred by the Lender or such Person hereunder and under any other
Loan Document or in connection herewith or therewith, unless such claim or
liability shall be due to willful misconduct or gross negligence on the part of
the Lender or such Person.
SECTION 9.10. COUNTERPARTS; TELECOPIED SIGNATURES. This
Security Agreement may be executed in counterparts, each of which when so
executed and delivered shall be an original, but both of which shall together
constitute one and the same instrument. This Security Agreement and each of
the other Loan Documents and any notices given in connection herewith or
therewith may be executed and delivered by telecopier or other
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facsimile transmission all with the same force and effect as of the same was a
fully executed and delivered original manual counterpart.
SECTION 9.11. SEVERABILITY. In case any provision in or
obligation under this Security Agreement or any Note or any other Loan Document
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 9.12. DELAYS; PARTIAL EXERCISE OF REMEDIES. No delay
or omission of the Lender to exercise any right or remedy hereunder, whether
before or after the happening of any Event of Default, shall impair any such
right or shall operate as a waiver thereof or as a waiver of any such Event of
Default. No single or partial exercise by the Lender of any right or remedy
shall preclude any other or further exercise thereof, or preclude any other
right or remedy.
SECTION 9.13. ENTIRE AGREEMENT. The Borrower and the Lender
agree that this Security Agreement and the Schedule hereto are the complete and
exclusive statement and agreement between the parties with respect to the
subject matter hereof, superseding all proposals and prior agreements, oral or
written, and all other communications between the parties with respect to the
subject matter hereof.
SECTION 9.14. SETOFF. In addition to and not in limitation
of all rights of offset that the Lender may have under Applicable Law, and
whether or not the Lender has made any demand or the Obligations of the
Borrower have matured, the Lender shall have the right to appropriate and apply
to the payment of the Obligations of the Borrower all deposits and other
obligations then or thereafter owing by the Lender to or for the credit or the
account of the Borrower.
SECTION 9.15. WAIVER OF JURY TRIAL. THE BORROWER AND THE
LENDER IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT, ANY
OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 9.16. GOVERNING LAW. THE VALIDITY, INTERPRETATION
AND ENFORCEMENT OF THIS SECURITY AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAW PRINCIPLES THEREOF.
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SECTION 9.17. VENUE; SERVICE OF PROCESS. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS SITUATED IN XXXX COUNTY,
OR OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF ILLINOIS, AND,
BY EXECUTION AND DELIVERY OF THIS SECURITY AGREEMENT, THE BORROWER HEREBY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE BORROWER HEREBY
IRREVOCABLY WAIVES, IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING, (a) ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS AND (b) THE RIGHT TO INTERPOSE ANY NONCOMPULSORY SETOFF,
COUNTERCLAIM OR CROSS-CLAIM. THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE BORROWER AT THE ADDRESS FOR IT SPECIFIED IN SECTION 9.1 HEREOF.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE LENDER TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION, SUBJECT IN EACH
INSTANCE TO THE PROVISIONS HEREOF WITH RESPECT TO RIGHTS AND REMEDIES.
IN WITNESS WHEREOF, the undersigned Borrower has caused this Security
Agreement to be duly executed and delivered by its proper and duly authorized
officer as of the date first set forth above.
BOLDER TECHNOLOGIES CORPORATION
By:/s/ XXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, President & CEO
Accepted as of the
19th day of March, 1997
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ XXXX X. XXXX
-------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
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SCHEDULE A
To: / x / Security Agreement
/ / UCC
Dated March 4, 0000
Xxxxxxx
XXXXXXXXXXXX BUSINESS CREDIT CORPORATION and
Customer Name: Bolder Technologies Corporation
Equipment Location: 0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
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QTY. EQUIPMENT INVOICE SUPPLIER/ PURCHASE EQUIPMENT
DESCRIPTION NO. VENDOR DATE COST
----------------------------------------------------------------------------------------------------------
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----------------------------------------------------------------------------------------------------------
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Transamerica Business Credit Bolder Technologies Corporation
Corporation
By: By:
------------------------------ -------------------------------
Title: Title:
--------------------------- ----------------------------
23
EXHIBIT A
COLLATERAL ACCESS AGREEMENT
TRANSAMERICA BUSINESS CREDIT CORPORATION
TECHNOLOGY FINANCE DIVISION
00 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
, 1997
---------- ---
--------------------------
--------------------------
--------------------------
Re: Bolder Technologies Corporation
Ladies and Gentlemen:
We have been asked by Bolder Technologies Corporation (the "Company")
to finance certain equipment (the "Equipment"), which will be located at the
address identified on Schedule A (the "Premises"). The obligations of the
Company to us will be secured by, among other things, the Equipment. We
understand that the Company leases the Premises, from you pursuant to a lease
or is the owner of the Premises, which is subject to a lien in favor of you
pursuant to a mortgage (such lease or mortgage being referred to as the
"Agreement").
In connection with the extensions of credit to be made to the Company,
Transamerica Business Credit Corporation, ("Transamerica") will be making
customary Uniform Commercial Code filings on behalf of Transamerica with
respect to the Equipment. In addition, we request your acknowledgment and
cooperation for preserving and enforcing Transamerica's security interests. To
expedite the consummation of the proposed financing, we would appreciate your
execution of this letter.
To induce Transamerica to finance the Equipment, and for other good and
valuable consideration, you confirm and acknowledge the following matters to us:
1. You will allow us, or our auditors or other designees,
reasonable access to the Premises to inspect the Equipment from time to time. In
addition, upon our request, you will grant us and our designees access to the
Premises for 90 days at reasonable times to show the Equipment to potential
purchasers and to remove the Equipment from the Premises.
2. In the event that the Company defaults in its obligations under
the Agreement or you desire or elect to terminate or exercise remedies under
the Agreement for any
24
reason, including a default by the Company under the Agreement, you will notify
us in writing of this fact prior to your terminating or exercising remedies
under the Agreement and retaking possession of the Premises. You hereby confirm
and acknowledge to us that you do not and will not have any claim to or lien on
any of the Equipment, whether such Equipment constitutes fixtures or personal
property.
We would appreciate your confirming to us your agreement to the
foregoing provisions of this letter by signing and returning to us this letter
at our address shown above.
Very truly yours,
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: ------------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED:
By: --------------------------
Name:
Title:
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
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25
Schedule A
Location of Equipment
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
26
EXHIBIT B
PROMISSORY NOTE
Date: ___________________, 199__
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
Transamerica Business Credit Corporation or its assigns (the "Payee") at its
office located at Riverway II, West Office Tower, 0000 Xxxx Xxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, or at such other place as the Payee or the holder
hereof may designate in writing, the principal amount of $__________ Dollars
($___________) received by the undersigned, plus interest, in lawful money of
the United States and in immediately available funds. This Note shall be payable
commencing with a first installment of $ __________ Dollars ($_________) payable
on ____________ ___, 199__ and thereafter in ___ consecutive equal monthly
installments of $ __________ Dollars ($___________) commencing ________________
___ , 199__ and a final installment payable on ____________ ___, ____ of
$____________ Dollars ($_____________) together with the unpaid balance of the
Note. No amount of principal paid or prepaid hereunder may be reborrowed.
This Note is one of the Notes referred to in the Security Agreement
dated as of January __, 1997 (as amended, supplemented or otherwise modified
from time to time, the "Agreement"), between the undersigned and the Payee and
is subject and entitled to all provisions and benefits thereof. Capitalized
terms used but not defined herein shall have the meanings set forth in the
Agreement.
If any installment of this Note is not paid within five days after its
due date, the undersigned agrees to pay on demand, in addition to the amount of
such installment, an amount equal to 5% of such installment, but only to the
extent permitted by Applicable Law.
The undersigned shall have the right to prepay this Note, in whole or
in part, at any time on thirty days' prior written notice to the Payee. On the
date of any such prepayment, the undersigned shall pay the principal amount of
this Note being so prepaid, which amount shall be discounted at 6% simple
interest per annum if made on or after ________________________ , ___ (1),
together with all interest, fees and other amounts payable on the amount so
prepaid or in connection therewith to the date of such prepayment. Any
prepayments shall be applied to the installments hereof in the inverse order
of maturity.
------------------
(1) Insert the date that is one-third into the original stated term of the Loan.
27
Upon the maturity of this Note or the acceleration of the maturity of
this Note in accordance with the terms of the Agreement, the entire unpaid
principal amount on this Note, together with all interest, fees and other
amounts payable hereon or in connection herewith, shall be immediately due and
payable without further notice or demand, with interest on all such amounts at
a rate not to exceed the lawful limit, from the date of such maturity or
acceleration, as the case may be, until all such amounts have been paid.
If any payment on this Note becomes payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day.
The undersigned hereby waives diligence, demand, presentment, protest
and notice of any kind, and assents to extensions of the time of payment,
release, surrender or substitution of security, or forbearance or other
indulgence, without notice. The undersigned agrees to pay all amounts under
this Note without offset, deduction, claim, counterclaim, defense or
recoupment, all of which are hereby waived.
The Payee, the undersigned and any other parties to the Loan Documents
intend to contract in strict compliance with applicable usury law from time to
time in effect. In furtherance thereof such Persons stipulate and agree that
none of the terms and provisions contained in the Loan Documents shall ever be
construed to create a contract to pay, for the use, forbearance or detention of
money, interest in excess of the maximum amount of interest permitted to be
charged by Applicable Law from time to time in effect. Neither the undersigned
nor any present or future guarantors, endorsers, or other Persons hereafter
becoming liable for payment of any Obligation shall ever be liable for unearned
interest thereon or shall ever be required to pay interest thereon in excess of
the maximum amount that may be lawfully charged under Applicable Law from time
to time in effect, and the provisions of this paragraph shall control over all
other provisions of the Loan Documents which may be in conflict or apparent
conflict herewith. The Payee expressly disavows any intention to charge or
collect excessive unearned interest or finance charges in the event the
maturity of any Obligation is accelerated. If (a) the maturity of any
Obligation is accelerated for any reason, (b) any Obligation is prepaid and as
a result any amounts held to constitute interest are determined to be in excess
of the legal maximum, or (c) the Payee or any other holder of any or all of the
Obligations shall otherwise collect amounts which are determined to constitute
interest which would otherwise increase the interest on any or all of the
Obligations to an amount in excess of that permitted to be charged by
Applicable Law then in effect, then all sums determined to constitute interest
in excess of such legal limit shall, without penalty, be promptly applied to
reduce the then
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28
outstanding principal of the related Obligations or, at the Payee's or such
holder's option, promptly returned to the undersigned upon such determination.
In determining whether or not the interest paid or payable, under any specific
circumstance, exceeds the maximum amount permitted under Applicable Law, the
Payee and the undersigned (and any other payors thereof) shall to the greatest
extent permitted under Applicable Law, (i) characterize any non-principal
payment as an expense, fee or premium rather than as interest, (ii) exclude
voluntary prepayments and the effects thereof, and (iii) amortize, prorate,
allocate, and spread the total amount of interest through the entire
contemplated term of this Note in accordance with the amount outstanding from
time to time thereunder and the maximum legal rate of interest from time to
time in effect under Applicable Law in order to lawfully charge the maximum
amount of interest permitted under Applicable Law.
This Note may not be changed, modified or terminated orally, but only
by an agreement in writing signed by the undersigned and the Payee or any
holder hereof.
The undersigned shall, upon demand, pay to the Payee all costs and
expenses incurred by the Payee (including the fees and disbursements of counsel
and other professionals) in connection with the preparation, execution and
delivery of this Note and all other Loan Documents, and in connection with the
administration, modification and amendment of the Loan Documents, and pay to
the Payee all costs and expenses (including the fees and disbursements of
counsel and other professionals) paid or incurred by the Payee in (A)
enforcing or defending its rights under or in respect of this Note or any of
the other Loan Documents, (B) collecting any of the liabilities by the
undersigned to the Payee or otherwise administering the Loan Documents, (C)
foreclosing or otherwise collecting upon any collateral and (D) obtaining any
legal, accounting or other advice in connection with any of the foregoing.
This Note shall be binding upon the successors and assigns of the
undersigned and inure to the benefit of the Payee and its successors, endorsees
and assigns. If any term or provision of this Note shall be held invalid,
illegal or unenforceable, the validity of all other terms and provisions hereof
shall in no way be affected thereby.
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29
EACH OF THE UNDERSIGNED AND, BY ITS ACCEPTANCE HEREOF, THE PAYEE HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OR ANY
DISPUTE ARISING UNDER OR RELATING TO THIS NOTE AND AGREES THAT ANY SUCH DISPUTE
SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAW.
BOLDER TECHNOLOGIES CORPORATION
By:
------------------------------------
Name:
Title:
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