1
Page 17 of 33
EXHIBIT 2
---------
17
2
Page 18 of 33
SECURITY AGREEMENT
------------------
SECURITY AGREEMENT, dated as of June 30, 1995, among (a)
TransTechnology Corporation, a Delaware corporation ("TransTechnology"); (b)
TransTechnology Acquisition Corporation, a Delaware corporation; Palnut
Fasteners, Inc., a Delaware corporation; Industrial Retaining Ring Company, a
New Jersey corporation; Retainers, Inc., a New Jersey corporation; Rancho
TransTechnology Corporation, a California corporation; TransTechnology Systems &
Services, Inc., a Michigan corporation; Electronic Connections and Assemblies,
Inc., a Delaware corporation; SSP Industries, a California corporation; SSP
International Sales, Inc., a California corporation; TransTechnology
Xxxxxx-Orbis, Inc., a Delaware corporation; and Waldes Truarc Inc., a Delaware
corporation (each a "Subsidiary" and collectively, the "Subsidiaries")
(TransTechnology and the Subsidiaries are referred to collectively herein as the
"Companies") and (c) and The First National Bank of Boston, a national banking
association as agent (hereinafter, in such capacity, the "Agent") for itself and
other lending institutions (hereinafter, collectively, the "Lenders") which are
or may become parties to a $115,000,000 Revolving Credit and Term Loan Agreement
dated as of June 30. 1995 (as amended and in effect from time to time, the
"Credit Agreement"), among TransTechnology, TransTechnology Xxxxxx-Orbis GmbH,
TTUK Acquisition Co. Limited (collectively, the "Borrowers"), the Lenders, The
First National Bank of Boston acting through its London Branch and its Frankfurt
Branch, as Fronting Bank, The First National Bank of Boston, as Issuing Bank and
the Agent.
WHEREAS, TransTechnology is the direct or indirect owner of all of the
capital stock or other equity interests of each of the Subsidiaries;
WHEREAS, pursuant to the Credit Agreement, the Lenders have, upon the
terms and subject to the conditions contained therein, agreed to make loans and
otherwise extend credit to the Borrowers;
WHEREAS, the financial success of each of the Subsidiaries is dependent
in whole or in part on the financial success of TransTechnology;
WHEREAS, each of the Subsidiaries expects to receive substantial direct
and indirect benefits from the extensions of credit to TransTechnology by the
Lenders pursuant to the Credit Agreement (which benefits are hereby
acknowledged);
WHEREAS, pursuant to that certain TransTechnology Guaranty dated as of
the date hereof (as amended, modified, supplemented or restated from time to
time, and including any replacements thereof, the "TransTechnology Guaranty"),
TransTechnology has guaranteed the obligations of the other Borrowers under the
Credit Agreement, the Notes and the other Loan Documents:
18
3
Page 19 of 33
WHEREAS, pursuant to the terms of that certain Subsidiary Guaranty
dated as of the date hereof (as amended, modified, supplemented or restated from
time to time, and including any replacement therefor, the "Subsidiary
Guaranty"), each of the Subsidiaries has guaranteed all of the obligations of
TransTechnology under the Credit Agreement, the TransTechnology Guaranty and the
other Loan Documents executed and delivered in connection with the Credit
Agreement;
WHEREAS, it is a condition precedent to the Lenders' making any loans
or otherwise extending credit to the Borrowers under the Credit Agreement that
the Company execute and deliver to the Agent, for the benefit of the Lenders and
the Agent, a security agreement in substantially the form hereof; and
WHEREAS, each of the Companies wishes to grant security interests in
favor of the Agent, for the benefit of the Lenders and the Agent, as herein
provided:
NOW THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The term "Obligations" as used herein shall mean
collectively, all indebtedness, obligations and liabilities of any of the
Companies to any of the Lenders and the Agent individually or collectively,
existing on the date hereof or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under the Credit Agreement, the TransTechnology
Guaranty, the Subsidiary Guaranty or any of the other Loan Documents or in
respect of any of the Loans made or Reimbursement Obligations incurred or any of
the Notes, Letter of Credit Application, Letter of Credit or other instruments
at any time evidencing any thereof. All capitalized terms used herein without
definitions shall have the respective meanings provided therefor in the Credit
Agreement. All terms defined in the Uniform Commercial Code of the Commonwealth
of Massachusetts and used herein shall have the same definitions herein as
specified therein.
2. GRANT OF SECURITY INTEREST.
2.1 COLLATERAL GRANTED. Each of the Companies hereby
unconditionally, and jointly and severally, grants to the Agent, for the benefit
of the Lenders and the Agent, to secure the payment and performance in full of
all of the Obligations, a security interest in and so pledges and assigns to the
Agent, for the benefit of the Lenders and the Agent. the following properties,
assets and rights of the Companies, wherever located, whether now owned or
hereafter acquired or arising, and all proceeds and products thereof (all of the
same being hereinafter called the "Collateral"):
19
4
Page 20 of 33
All personal and fixture property of every kind and
nature including without limitation all furniture, fixtures,
equipment, raw materials, inventory, goods, accounts, contract
rights, rights to the payment of money, insurance refund
claims and all other insurance claims and proceeds, tort
claims, chattel paper, documents, instruments (including
certificated securities), deposit accounts and all general
intangibles including, without limitation, all uncertificated
securities, tax refund claims, license fees, patents, patent
applications, trademarks, trademark applications, trade names,
copyrights, copyright applications, rights to xxx and recover
for past infringement of patents, trademarks and copyrights,
computer programs, computer software, engineering drawings,
service marks, customer lists, goodwill, and all licenses,
permits, agreements of any kind or nature pursuant to which
such Company possesses, uses or has authority to possess or
use property (whether tangible or intangible) of others or
others possess, use or have authority to possess or use
property (whether tangible or intangible) of such Company, and
all recorded data of kind or nature, regardless of the medium
of recording including, without limitation, all software,
writings, plans, specifications and schematics.
Each of the Companies acknowledges and agrees that, in applying the law of any
jurisdiction that has now enacted or hereafter enacts all or substantially all
of the uniform revision of Article 8 of the Uniform Commercial Code, with new
provisions added to Article 9 contemplated by such revision, all as approved in
1994 by the American Law Institute and the National Conference of Commissioners
on Uniform State Laws, the foregoing description of Collateral shall be deemed
to include "investment property" as defined in such new provisions of Article 9,
it being the intention of each of the Companies that such property be included
in the foregoing description of Collateral, whether prior to or after the
effectiveness of such revision in such jurisdiction.
2.2 DELIVERY OF INSTRUMENTS, ETC. Pursuant to the terms hereof
each of, the Companies has endorsed, assigned and delivered to the Agent all
negotiable or non-negotiable instruments (including certificated securities) and
chattel paper pledged by it hereunder, together with instruments of transfer or
assignment duly executed in blank as the Agent may have specified. In the event
that any of the Companies shall, after the date of this Agreement, acquire any
other negotiable or non-negotiable instruments (including certificated
securities) or chattel paper to be pledged by it hereunder, such Company shall
forthwith endorse, assign and deliver the same to the Agent, accompanied by such
instruments of transfer or assignment duly executed in blank as the Agent may
from time to time specify. To the extent that any securities are uncertificated,
appropriate
20
5
Page 21 of 33
book-entry transfers reflecting the pledge of such securities created hereby
have been or, in the case of uncertificated securities hereafter acquired by any
of the Companies, will at the time of such acquisition be, duly made for the
account of the Agent or one or more nominees of the Agent with the issuer of
such securities or other appropriate book-entry facility or financial
intermediary, with the Agent having at all times the right to obtain definitive
certificates (in the Agent's name or in the name of one or more nominees of the
Agent) where the issuer customarily or otherwise issues certificates, all to be
held as Collateral hereunder. Each of the Companies hereby acknowledges that the
Agent may, in its discretion, appoint one or more financial institutions to act
as the Agent's agent in holding in custodial account instruments or other
financial assets in which the Agent is granted a security interest hereunder,
including, without limitation, certificates of deposit and other instruments
evidencing short term obligations.
2.3 EXCLUDED COLLATERAL. Notwithstanding the foregoing
provisions of this Section 2, such grant of security interest shall not extend
to, and the term "Collateral" shall not include, any chattel paper and general
intangibles which are now or hereafter held by any of the Companies as licensee,
lessee or otherwise, to the extent that (i) such chattel paper and general
intangibles are not assignable or capable of being encumbered as a matter of law
or under the terms of the license, lease or other agreement applicable thereto
(but solely to the extent that any such restriction shall be enforceable under
applicable law), without the consent of the licensor or lessor thereof or other
applicable party thereto and (ii) such consent has not been obtained: provided,
however, that the foregoing grant of security interest shall extend to, and the
term "Collateral" shall include, (A) any and all proceeds of such chattel paper
and general intangibles to the extent that the assignment or encumbering of such
proceeds is not so restricted and (B) upon any such licensor, lessor or other
applicable party consent with respect to any such otherwise excluded chattel
paper or general intangibles being obtained, thereafter such chattel paper or
general intangibles as well as any and all proceeds thereof that might have
theretofore have been excluded from such grant of a security interest and the
term "Collateral".
2.4 STOCK PLEDGE AGREEMENT. Concurrently herewith certain of
the Companies are executing and delivering to the Agent, for the benefit of the
Lenders and the Agent, a stock pledge agreement pursuant to which such Companies
are pledging to the Agent, for the benefit of the Lenders and the Agent, all the
shares of the capital stock of such Company's subsidiary or subsidiaries. Such
pledge(s) shall be governed by the terms of such stock pledge agreement and not
by the terms of this Agreement.
2.5 PATENT AND TRADEMARK ASSIGNMENTS. Concurrently herewith
certain of the Companies are also executing and delivering to the Agent, for the
benefit of the Lenders and the Agent, the Patent Assignment and the Trademark
Assignment pursuant to which such Companies are assigning to the Agent, for the
benefit of the Lenders and the Agent, certain Collateral consisting of patents
and patent rights and trademarks, service marks and trademark and service xxxx
rights, together with the goodwill appurtenant thereto. The provisions of the
Patent Assignment and the Trademark Assignment are supplemental to the
provisions of this Agreement, and nothing contained in the Patent Assignment or
the Trademark Assignment shall derogate from any of the rights or remedies of
the Agent or any of the Lenders hereunder. Nor
21
6
Page 22 of 33
shall anything contained in the Patent Assignment or the Trademark Assignment be
deemed to prevent or extend the time of attachment or perfection of any security
interest in such Collateral created hereby.
2.6 COPYRIGHT MEMORANDUM. Concurrently herewith certain of the
Companies are, in addition, executing and delivering to the Agent for recording
in the United States Copyright Office (the "Copyright Office") a Memorandum of
Grant of Security Interest in Copyrights. Such Companies represent and warrant
to the Agent that such Memorandum identifies all now existing material
copyrights and other rights in and to all material copyrightable works of such
Company, identified, where applicable, by title, author and/or Copyright Office
registration number and date. Such Company represents and warrants to the Agent
that it has registered all material copyrights with the Copyright Office, as
identified in such Memorandum. Each of the Companies covenants, promptly
following such Company's acquisition thereof, to provide to the Agent like
identifications of all material copyrights and other rights in and to all
material copyrightable works hereafter acquired by such Company and to execute
and deliver to the Agent a supplemental Memorandum of Grant of Security Interest
in Copyrights modified to reflect such subsequent acquisitions.
2.7 GOVERNMENT CONTRACTS. Each Company agrees that it shall
execute all such documents, and take all such actions, as the Agent shall
determine to be necessary or appropriate from time to time under the Federal
Assignment of Claims Act of 1940, as amended, or the laws of appropriate states
relating to the assignment of state government receivables, as the case may be,
in order to confirm and assure to the Agent, for the benefit of the Lenders and
the Agent, its rights under this Agreement with respect to any and all
Collateral consisting of such Company's rights to monies due or to become due
under any contracts or agreements with or orders from the United States
government or any agency or department thereof, or any state government or any
agency or department thereof, as the case may be, the assignment of which is not
prohibited by such contract or agreement (collectively, "Government
Receivables"). Without limiting the generality of the foregoing, each Company
agrees that simultaneously with the execution and delivery of this Agreement it
shall execute and deliver to the Agent a confirmatory assignment substantially
in the form of Exhibit A attached hereto (a "Confirmatory Assignment") with
respect to each Government Receivable existing on the date hereof where the
aggregate proceeds payable to such Company thereunder exceed $100,000, and
within ten Business Days after the creation of any such new Government
Receivable, such Company shall execute and deliver to the Agent a Confirmatory
Assignment with respect thereto. Each Company hereby irrevocably authorizes the
Agent, or its designee, at such Company's expense, to file with the United
States government or the appropriate state government, as the case may be, (or
the appropriate agency or instrumentality thereof) a notice of each assignment
of a Government Receivable substantially in the form of EXHIBIT B attached
hereto (a "Notice of Assignment"), to which a copy of the relevant Confirmatory
Assignment may be attached, and
22
7
Page 23 of 33
appoints the Agent as such Company's attorney-in-fact to execute
and file any such Confirmatory Assignments, Notices of Assignment and any
ancillary documents relating thereto.
3. TITLE TO COLLATERAL, ETC. The Companies are the owners of the
Collateral free from any adverse lien, security interest or other encumbrance,
except for the security interest created by this Agreement and other liens
permitted by the Credit Agreement. None of the Collateral constitutes, or is the
proceeds of "farm products" as defined in Section 9-109(3) of the Uniform
Commercial Code of the Commonwealth of Massachusetts.
4. CONTINUOUS PERFECTION. Each of the Companies' respective places of
business or, if more than one, chief executive offices are indicated on the
Perfection Certificates delivered to the Agent herewith (the "Perfection
Certificates"). None of the Companies will change the same, or the name,
identity or corporate structure of such Company in any manner without providing
at least thirty (30) days prior written notice to the Agent. The Collateral, to
the extent not delivered to the Agent pursuant to Section 2.2 will be kept at
those locations listed on the Perfection Certificates and the Companies will not
remove the Collateral from such locations, without providing at least thirty
(30) days prior written notice to the Agent.
5. NO LIENS. Except for the security interest herein granted and liens
permitted by the Credit Agreement, the Companies shall be the owners of the
Collateral free from any lien, security interest or other encumbrance, and the
Companies shall defend the same against all claims and demands of all persons at
any time claiming the same or any interests therein adverse to the Agent or any
of the Lenders. None of the Companies shall pledge, mortgage or create, or
suffer to exist a security interest in the Collateral in favor of any person
other than the Agent, for the benefit of the Lenders and the Agent, except for
liens permitted by the Credit Agreement.
6. NO TRANSFERS. Except as permitted by Section 10.5.2 of the
Credit Agreement, the Companies will sell or offer to sell or otherwise transfer
the Collateral or any interest therein.
7. INSURANCE.
7.1 MAINTENANCE OF INSURANCE. Each of the Companies will
maintain with financially sound and reputable insurers insurance with respect to
its properties and business against such casualties and contingencies as shall
be in accordance with general practices of businesses engaged in similar
activities in similar geographic areas. Such insurance shall be in such minimum
amounts that such Company will not be deemed a co-insurer under applicable
insurance laws, regulations and policies and otherwise shall be in such amounts,
contain such terms, be in such forms and be for such periods as may be
reasonably satisfactory to the Agent. In addition, all such insurance shall be
payable to the Agent as loss payee under a "standard" or "New York" loss payee
clause for the benefit of the Lenders and the Agent. Without limiting
23
8
Page 24 of 33
the foregoing, each of the Companies will (i) keep all of its physical property
insured with casualty or physical hazard insurance on an "all risks" basis, with
broad form flood and earthquake coverages and electronic data processing
coverage, with a full replacement cost endorsement and an "agreed amount" clause
in an amount equal to 100% of the full replacement cost of such property, (ii)
maintain all such workers' compensation or similar insurance as may be required
by law and (iii) maintain, in amounts and with deductibles equal to those
generally maintained by businesses engaged in similar activities in similar
geographic areas, general public liability insurance against claims of bodily
injury, death or property damage occurring, on, in or about the properties of
such Company: business interruption insurance; and product liability insurance.
7.2 INSURANCE PROCEEDS. The proceeds of any casualty insurance
in respect of any casualty loss of any of the Collateral shall, subject to the
rights, if any, of other parties with a prior interest in the property covered
thereby, (i) so long as no Default or Event of Default has occurred and is
continuing and to the extent that the amount of such proceeds is less than
$100,000, be disbursed to the Company which suffers such loss for direct
application by such Company solely to the repair or replacement of such
Company's property so damaged or destroyed and (ii) in all other circumstances,
be held by the Agent as cash collateral for the Obligations. The Agent may, at
its sole option, disburse from time to time all or any part of such proceeds so
held as cash collateral, upon such terms and conditions as the Agent may
reasonably prescribe, for direct application by such Company solely to the
repair or replacement of such Company's property so damaged or destroyed, or the
Agent may apply all or any part of such proceeds to the Obligations with the
Total Commitment (if not then terminated) being reduced by the amount so applied
to the Obligations.
7.3 NOTICE OF CANCELLATION, ETC. All policies of insurance
shall provide for at least thirty (30) clays prior written cancellation notice
to the Agent. In the event of failure by the Companies to provide and maintain
insurance as herein provided, the Agent may, at its option, provide such
insurance and charge the amount thereof to the Companies. The Companies shall
furnish the Agent with certificates of insurance and policies evidencing
compliance with the foregoing insurance provision.
8. MAINTENANCE OF COLLATERAL COMPLIANCE WITH LAW. Each of the Companies
will keep the Collateral in good order and repair and will not use the same in
violation of law or any policy of insurance thereon. The Agent, or its designee
may inspect the Collateral at any reasonable time, wherever located. Each of the
Companies will pay promptly when due all taxes, assessments, governmental
charges and levies upon the Collateral or incurred in connection with the use or
operation of such Collateral or incurred in connection with this Agreement. Each
of the Companies has at all times operated, and each such Company will continue
to operate its business in compliance with all applicable provisions of the
federal Fair Labor Standards Act as amended, and with all applicable provisions
of federal, state and local
24
9
Page 25 of 33
statutes and ordinances dealing with the control, shipment, storage or disposal
of hazardous materials or substances.
9. COLLATERAL PROTECTION EXPENSES: PRESERVATION OF COLLATERAL.
9.1 EXPENSES INCURRED BY AGENT. In its discretion the Agent
may discharge taxes and other encumbrances at any time levied or placed on any
of the Collateral make repairs thereto and pay any necessary filing fees. Each
of the Companies agrees jointly and severally to reimburse the Agent on demand
for any and all expenditures so made. The Agent shall have no obligation to any
of the Companies to make any such expenditures, nor shall the making thereof
relieve the Companies of any default.
9.2 AGENT'S OBLIGATIONS AND DUTIES. Anything herein to the
contrary notwithstanding, each of the Companies shall remain liable under each
contract or agreement comprised in the Collateral to be observed or performed by
such Company thereunder. Neither the Agent nor any Lender shall have any
obligation or liability under any such contract or agreement by reason of or
arising out of this Agreement or the receipt by the Agent or any Lender of any
payment relating to any of the Collateral, nor shall the Agent or any Lender be
obligated in any manner to perform any of the obligations of any of the
Companies under or pursuant to any such contract or agreement, to make inquiry
as to the nature or sufficiency of any payment received by the Agent or any
Lender in respect of the Collateral or as to the sufficiency of any performance
by any party under any such contract or agreement, to present or file any claim,
to take any action to enforce any performance or to collect the payment of any
amounts which may have been assigned to the Agent or to which the Agent or any
Lender may be entitled at any time or times. The Agent's sole duty with respect
to the custody, safe keeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the Uniform Commercial Code of the
Commonwealth of Massachusetts or otherwise, shall be to deal with such
Collateral in the same manner as the Agent deals with similar property for its
own account.
10. SECURITIES AND DEPOSITS. The Agent may at any time, at its
option, transfer to itself or any nominee any securities constituting
Collateral, receive any income thereon and hold such income as additional
Collateral or apply it to the Obligations. Whether or not any Obligations are
due, the Agent may demand, xxx for, collect, or make any settlement or
compromise which it deems desirable with respect to the Collateral. Regardless
of the adequacy of Collateral or any other security for the Obligations, any
deposits or other sums at any time credited by or due from the Agent or any
Lender to any of the Companies may at any time be applied to or set off against
any of the Obligations.
11. NOTIFICATION TO ACCOUNT DEBTORS AND OTHER OBLIGERS. If a Default or
an Event of Default shall have occurred and be continuing, each of the Companies
shall, at the request of the Agent, notify account debtors on accounts, chattel
paper and general intangibles of such
25
10
Page 26 of 33
Company and obligers on instruments for which such Company is an obligee of the
security interest of the Agent in any account, chattel paper, general intangible
or instrument and that payment thereof is to be made directly to the Agent or to
any financial institution designated by the Agent as the Agent's agent therefor,
and the Agent may itself, if a Default or an Event of Default shall have
occurred and be continuing, without notice to or demand upon such Company, so
notify account debtors and obligers. After the making of such a request or the
giving of any such notification, such Company shall hold any proceeds of
collection of accounts, chattel paper, general intangibles and instruments
received by such Company as trustee for the Agent, for the benefit of the
Lenders and the Agent, without commingling the same with other funds of such
Company and shall turn the same over to the Agent in the identical form
received, together with any necessary endorsements or assignments. The Agent
shall apply the proceeds of collection of accounts, chattel paper, general
intangibles and instruments received by the Agent to the Obligations, such
proceeds to be immediately entered after final payment in cash or solvent
credits of the items giving rise to them.
12. FURTHER ASSURANCES. Each of the Companies, at its own expense,
shall do, make, execute and deliver all such additional and further acts,
things, deeds, assurances and instruments as the Agent may require more
completely to vest in and assure to the Agent and the Lenders their respective
rights hereunder or in any of the Collateral, including, without limitation, (i)
executing, delivering and, where appropriate, filing financing statements and
continuation statements under the Uniform Commercial Code, (ii) obtaining
governmental and other third part consents and approvals, including without
limitation any consent of any licensor, lessor or other applicable party
referred to in Section 2.3, (iii) obtaining waivers from mortgagees and
landlords and (iv) taking all actions required by Sections 8-313 and 8-321 of
the Uniform Commercial Code, as applicable in each relevant jurisdiction: with
respect to certificated and uncertificated securities.
13. POWER OF ATTORNEY.
13.1 APPOINTMENT AND POWERS OF AGENT. Each of the Companies
hereby irrevocably constitutes and appoints the Agent and any officer or agent
thereof, with full power of substitution, as its true and lawful
attorneys-in-fact with full irrevocable power and authority in the place and
stead of such Company or in the Agent's own name, for the purpose of carrying
out the terms of this Agreement. to take any and all appropriate action and to
execute any and all documents and instruments that may be necessary or desirable
to accomplish the purposes of this Agreement and, without limiting the
generality of the foregoing, hereby gives said attorneys the power and right. on
behalf of such Company, without notice to or assent by such Company, to do the
following:
(a) upon the occurrence and during the continuance of
a Default or an Event of Default, generally to sell, transfer,
pledge, make any agreement with
26
11
Page 27 of 33
respect to or otherwise deal with any of the Collateral in
such manner as is consistent with the Uniform Commercial Code
of the Commonwealth of Massachusetts and as fully and
completely as though the Agent were the absolute owner thereof
for all purposes and to do at such Company's expense, at any
time, or from time to time, all acts and things which the
Agent deems necessary to protect, preserve or realize upon the
Collateral and the Agent's security interest therein, in order
to effect the intent of this Agreement, all as fully and
effectively as such Company might do, including, without
limitation, (i) the filing and prosecuting of registration and
transfer applications with the appropriate federal or local
agencies or authorities with respect to trademarks, copyrights
and patentable inventions and processes, (ii) upon written
notice to such Company, the exercise of voting rights with
respect to voting securities, which rights may be exercised,
if the Agent so elects, with a view to causing the liquidation
in a commercially reasonable manner of assets of the issuer of
any such securities and (iii) the execution, delivery and
recording, in connection with any sale or other disposition of
any Collateral, of the endorsements, assignments or other
instruments of conveyance or transfer with respect to such
Collateral; and
(b) to file such financing statements with respect
hereto, with or without such Company's signature, or a
photocopy of this Agreement in substitution for a financing
statement, as the Agent may deem appropriate and to execute in
such Company's name such financing statements and amendments
thereto and continuation statements which may require such
Company's signature.
13.2 RATIFICATION BY COMPANIES. To the extent permitted by
law, each of the Companies hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. This power of attorney is a
power coupled with an interest and shall be irrevocable.
13.3 NO DUTY ON AGENT. The powers conferred on the Agent
hereunder are solely to protect the interests of the Agent and the Lenders in
the Collateral and shall not impose any duty upon the Agent to exercise any such
powers. The Agent shall be accountable only for the amounts that it actually
receives as a result of the exercise of such powers and neither it nor any of
its officers. directors. employees or agents shall be responsible to any of the
Companies for any act or failure to act, except for the Agent's own gross
negligence or willful misconduct.
14. REMEDIES. If an Event of Default shall have occurred and be
continuing, the Agent may, without notice to or demand upon the Companies,
declare this Agreement to be in default, and the Agent shall thereafter have in
any jurisdiction in which enforcement hereof is sought, in addition to all other
rights and remedies, the rights and remedies of a secured party under the
Uniform Commercial Code including, without limitation, the right to take
possession
27
12
Page 28 of 33
of the Collateral, and for that purpose the Agent may, so far as the Companies
can give authority therefor enter upon any premises on which the Collateral may
be situated and remove the same therefrom. The Agent may in its discretion
require any of the Companies to assemble all or any part of the Collateral at
such location or locations within the state(s) of such Company's principal
office(s) or at such other locations as the Agent may designate. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, the Agent shall give to the
Companies at least five Business Days prior written notice of the time and place
of any public sale of Collateral or of the time after which any private sale or
any other intended disposition is to be made. Each of the Companies hereby
acknowledges that five Business Days prior written notice of such sale or sales
shall be reasonable notice. In addition, each of the Companies waives any and
all rights that it may have to a judicial hearing in advance of the enforcement
of any of the Agent's rights hereunder, including, without limitation, its right
following an Event of Default to take immediate possession of the Collateral and
to exercise its rights with respect thereto. To the extent that any of the
Obligations are to be paid or performed by a person other than the Companies,
each of the Companies waives and agrees not to assert any rights or privileges
which it may have under Section 9-112 of the Uniform Commonwealth Commercial
Code of the Commonwealth of Massachusetts.
15. NO WAIVER, ETC. Each of the Companies waives demand, notice,
protest, notice of acceptance of this Agreement, notice of loans made, credit
extended, Collateral received or delivered or other action taken in reliance
hereon and all other demands and notices of any description. With respect to
both the Obligations and the Collateral, each of the Companies assents to any
extension or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of or failure to perfect any security
interest in any Collateral, to the addition or release of any party or person
primarily or secondarily liable, to the acceptance of partial payment thereon
and the settlement, compromising or adjusting of any thereof, all in such manner
and at such time or times as the Agent may deem advisable. The Agent shall have
no duty as to the collection or protection of the Collateral or any income
thereon nor as to the preservation of rights against prior parties, nor as to
the preservation of any rights pertaining thereto beyond the safe custody
thereof as set forth in Section 9.2. The Agent shall not be deemed to have
waived any of its rights upon or under the Obligations or the Collateral unless
such waiver shall be in writing and signed by the Agent with the consent of the
Majority Lenders. No delay or omission on the part of the Agent in exercising
any right shall operate as a waiver of such right or any other right. A waiver
on any one occasion shall not be construed as a bar to or waiver of any right on
any future occasion. All rights and remedies of the Agent with respect to the
Obligations or the Collateral, whether evidenced hereby or by any other
instrument or papers, shall be cumulative and may be exercised singularly,
alternatively, successively or concurrently at such time or at such times as the
Agent deems expedient.
28
13
Page 29 of 33
16. MARSHALLING. Neither the Agent nor any Lender shall be required to
marshal any present or future collateral security (including but not limited to
this Agreement and the Collateral) for or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security or other
assurances of payment in any particular order, and all of the rights of the
Agent hereunder and of the Agent or any Lender in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, each of the Companies hereby agrees that it will not invoke any law
relating to the marshalling of collateral which might cause delay in or impede
the enforcement of the Agent's rights under this Agreement or under any other
instrument creating or evidencing any of the Obligations or under which any of
the Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
each of the Companies hereby irrevocably waives the benefits of all such laws.
17. PROCEEDS OF DISPOSITIONS EXPENSES. The Companies shall pay to the
Agent on demand any and all expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by the Agent in protecting, preserving or
enforcing the Agent's rights under or in respect of any of the Obligations or
any of the Collateral. After deducting all of said expenses, the residue of any
proceeds of collection or sale of the Obligations or Collateral shall, to the
extent actually received in cash be applied to the payment of the Obligations in
such order or preference as the Agent may determine proper allowance and
provision being made for any Obligations not then due. Upon the final payment
and satisfaction in full of all of the Obligations and after making any payments
required by Section 9-504(1)(c) of the Uniform Commercial Code of the
Commonwealth of Massachusetts, any excess shall be returned to the Companies,
and the Companies shall remain liable for any deficiency in the payment of the
Obligations.
18. OVERDUE AMOUNTS. Until paid, all amounts due and payable by the
Companies hereunder shall be a debt secured by the Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
19. NOTICES. All notices and other communications made or required to
be given pursuant to this Patent Agreement shall be in writing and shall be
delivered in hand mailed by United States registered or certified first-class
mail or if either the person giving the notice or the Person being notified is
outside the United States, by registered or recorded-delivery air mail, in each
case postage prepaid, sent by overnight courier, or sent by telegraph, telecopy,
facsimile or telex and confirmed by delivery via courier or postal service,
addressed as follows:
(a) if to any of the Companies. at TransTechnology
Corporation, 000 Xxxxxxx Xxxxxx, Xxxxx, Xxx Xxxxxx 00000-0000,
X.X.X. Attention: Xxxxxxxx
29
14
Page 30 of 33
Moisen, Chief Financial Officer, or at such other address for
notice as the Assignors shall last have furnished in writing
to the person giving the notice, and
(b) if to the Agent at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000. Attention: J. Xxxxx Xxxxxxxx, Director,
or at such other address for notice as the Agent shall last
have furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile,
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Days following the mailing thereof, and (iii) if sent by
registered or recorded delivery air mail, on the fifth Business Day following
the mailing thereof.
20. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT IS INTENDED
TO TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE
LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). Each of the Companies agrees
that any suit for the enforcement of this Agreement may be brought in the courts
of the Commonwealth of Massachusetts or any federal court sitting therein and
consents to the non-exclusive jurisdiction of such court and to service of
process in any such suit being made upon such Company by mail at the address
specified in Section 19. Each of the Companies (other than TransTechnology)
hereby expressly appoints TransTechnology at the address specified in Section 19
as its agent for service of process. Each of the Companies hereby waives any
objection that it may now or hereafter have to the venue of any such suit or any
such court or that such suit is brought in an inconvenient court.
21. WAIVER OF JURY TRIAL. EACH OF THE COMPANIES WAIVES ITS RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, each
of the Companies waives any right which it may have to claim or recover in any
litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. Each of the Companies (i) certifies that neither the Agent or
any Lender nor any representative, agent or attorney of the Agent or any Lender
has represented, expressly or otherwise, that the Agent or any Lender would not,
in the event of litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that in entering into the Credit Agreement and the other Lean
Documents to which the Agent or any Lender is a party, the Agent and the Lenders
are relying upon, among other things, the waivers and certifications contained
in this Section 21.
30
15
Page 31 of 33
22. MISCELLANEOUS. The headings of each section of this Agreement are
for convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon each of
the Companies and its respective successors and assigns, and shall inure to the
benefit of the Agent, the Lenders and their respective successors and assigns.
If any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein. Each
of the Companies acknowledges receipt of a copy of this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, each of the
Companies has caused this Security Agreement to be duly executed as of the date
first above written.
TRANSTECHNOLOGY CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxx
Senior Vice President
TRANSTECHNOLOGY ACQUISITION
CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxx
Senior Vice President
PALNUT FASTENERS, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxx
Senior Vice President
INDUSTRIAL RETAINING RING COMPANY
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxx
Senior Vice President
31
16
RETAINERS, INC.
By: /s/ Xxxxxxxxx Xxxx
-------------------------------------
Xxxxxxxxx Xxxx
Vice President
RANCHO TRANSTECHNOLOGY
CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxx
Senior Vice President
TRANSTECHNOLOGY SYSTEMS & SERVICES,
INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxx
Senior Vice President
ELECTRONIC CONNECTIONS AND
ASSEMBLIES, INC.
By: /s/ Xxxxxxxxx Xxxx
-------------------------------------
Xxxxxxxxx Xxxx
Vice President
SSP INDUSTRIES
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxx
Vice President
SSP INTERNATIONAL SALES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxx
Vice President
32
17
Page 33 of 33
TRANSTECHNOLOGY XXXXXX-ORBIS, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxx
Vice President
WALDES TRUARC, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxx
Vice President
Accepted:
THE FIRST NATIONAL BANK OF BOSTON, as Agent
By: /s/ J. Xxxxx Xxxxxxxx
----------------------------------
J. Xxxxx Xxxxxxxx, Director
33
