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Exhibit 10.66
RESTATED SECURITY AGREEMENT
(Accounts and/or Inventory, Chattel Paper, Contract Rights)
This Restated Security Agreement made as of the 29th day of April, 1998
by and between DECORA, INCORPORATED, a Delaware corporation authorized to do
business in the State of New York as DECORA MANUFACTURING, and having its
principal place of business at Xxx Xxxx Xxxxxx, Xxxx Xxxxxx, Xxx Xxxx 00000,
which is located in the County of Washington (herein called "Debtor") and FLEET
NATIONAL BANK (formerly known as Norstar Bank of Upstate NY), a banking
association organized and existing under and by virtue of the laws of the United
States of America and having an office for the transaction of business located
at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, the Debtor and the Secured Party entered into a Secured
Revolving Line of Credit Agreement on April 18, 1990 (together with all
amendments and modifications thereto herein called the "1990 Credit Agreement");
and
WHEREAS, pursuant to the 1990 Credit Agreement the Debtor did grant
Secured Party a security interest under the Uniform Commercial Code in, inter
alia, all of Debtor's now owned and hereafter acquired or arising, wherever
located, inventory, accounts receivable, chattel paper, contract rights,
instruments and choses in action, plus all proceeds and products thereof, if
any, and all replacements, additions and accessions thereto (herein called the
"Collateral"); and
WHEREAS, the Debtor and the Secured Party have, simultaneously herewith,
modified and restated the 1990 Credit Agreement in full pursuant to the terms
and conditions of a Restated Secured Revolving Line of Credit Agreement dated
the date hereof executed between the Debtor and the Secured Party (herein called
the "Restated Credit Agreement"); and
WHEREAS, pursuant to the Restated Credit Agreement the Debtor and the
Secured Party have agreed to continue the Secured Party's first priority
security interest in the Collateral and to grant a present security interest in
said Collateral all pursuant to the terms of this Restated Security Agreement.
NOW, THEREFORE, the Debtor and the Secured Party agree as follows:
The Debtor, in consideration for any and all loans and other credit
accommodations extended or to be extended to Debtor (or to others--the repayment
of which is unconditionally guaranteed by Debtor) by Secured Party, and for
other good and valuable consideration, receipt of which
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is acknowledged by Debtor, said Debtor does hereby continue the Secured Party's
first priority security interest in the Debtor's Collateral created by the 1990
Credit Agreement and does grant to Secured Party a security interest under the
Uniform Commercial Code in the Collateral.
1. The security interest hereunder secures payment of any and all
indebtedness of Debtor to Secured Party, whether now existing or hereafter
incurred, of every kind and character,direct or indirect, absolute or
contingent, and whether such indebtedness is from time to time reduced and
thereafter increased, or entirely extinguished and thereafter reincurred,
including, without limitation, any sums advanced by Secured Party for taxes,
assessments, insurance and other charges and expenses as hereinafter provided
(all herein called the "Indebtedness").
2. Debtor covenants that the Collateral and all records pertaining
thereto will remain located at its principal place of business unless specified
otherwise at Schedule A attached.
3. So long as any Indebtedness remains unpaid, Debtor (a) will defend
the Collateral against the claims and demands of all other parties; will keep
the Collateral free from all security interests or other encumbrances, except
this Security Interest; and will not sell, transfer, assign, deliver or
otherwise dispose of any Collateral or any interest therein without the prior
written consent of Secured Party or except as otherwise permitted in any other
agreement between Debtor and Secured Party; (b) will keep accurate and complete
records concerning the Collateral; and will permit Secured Party or its agents
to inspect the Collateral and to audit and make extracts from such records or
any of Debtor's books, ledgers, reports, correspondence and other records; (c)
upon demand, will deliver to Secured Party any instruments, any documents of
title and any chattel paper representing or relating to the Collateral or any
part thereof; any invoices, purchase orders, contracts or other documents
representing or relating to purchases or other acquisitions or sales, leases or
other dispositions of the Collateral and proceeds thereof; (d) will notify
Secured Party promptly in writing of any change in Debtor's address specified
above, and of any change in the location or any additional locations at which
Collateral is kept; (e) in connection herewith, will execute and deliver to
Secured Party such financing statements and other documents, pay all costs of
title searches and filing financing statements and other documents in all public
offices requested by Secured Party, and do such other things as Secured Party
may request; (f) will pay or cause to be paid all taxes, assessments and other
charges of every nature which may be levied or assessed against the Collateral;
(g) will insure or cause to be insured the Collateral against risks, and in
coverage, form and amounts satisfactory to Secured Party, will cause Secured
Party to be named as Lender Loss Payee under said policies, and at Secured
Party's request, will deliver or cause to be delivered each policy or
certificate of insurance thereof to Secured Party. In addition, Debtor hereby
authorizes Secured Party, at Debtor's expense, to file any financing statements
relating to the Collateral without Debtor's signature thereon as Secured Party
at its option may deem appropriate.
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4. Debtor agrees to deliver to Secured Party, in form satisfactory to
Secured Party, such year end financial statements, interim financial statements,
copies of federal tax returns, and supporting schedules and reports as Secured
Party may from time to time reasonably request; to cause any personal guarantor
of any of the Indebtedness to deliver to Secured Party such financial statements
and/or tax returns as Secured Party may from time to time reasonably request; to
deliver or cause to be delivered any Landlord Waiver, Mortgagee Waiver, or other
duly executed instruments of security or guaranty as Secured Party may now or
hereafter deem necessary to carry out the intent and purpose of this Security
Agreement. Debtor also agrees to furnish Secured Party from time to time upon
request, written Aging Schedules concerning accounts and account debtors and
such other written Schedules identifying and describing all Collateral as
defined in this Security Agreement, then owned by Debtor, and any additions or
substitutions thereof in such detail as Secured Party may require; and Secured
Party may examine and inspect the Collateral and supporting books and documents
at any reasonable time wherever located.
5. Debtor shall be in default under this Security Agreement upon the
occurrence of an Event of Default as defined in the Restated Credit Agreement.
6. Upon any such default and at any time thereafter, Secured Party may
declare all Indebtedness secured hereby immediately due and payable and Secured
Party shall have the remedies of a secured party provided in the Uniform
Commercial Code, and in addition, those provided by other provisions of law and
in this Security Agreement. Secured Party may notify any or all parties
obligated to pay Debtor instruments, chattel paper, contract rights, and
accounts arising from any of the foregoing, and may also direct any and all such
account debtors to make all payments on any of the foregoing directly to Secured
Party and Secured Party may demand, collect and xxx for any of the foregoing
(but without the obligation to do so), in either Debtor's or Secured Party's
name at the latter's option, with the right to enforce, compromise, settle or
discharge any of the foregoing, and may endorse Debtor's name on any and all
checks, commercial paper and any other instruments pertaining to the foregoing.
Secured Party will at all times have the right to enter upon any place or places
where Collateral may be located and take possession on Debtor's premises or to
remove the Collateral or any part thereof to such other premises as Secured
Party may desire. Upon Secured Party's request, Debtor shall assemble the
Collateral and make it available to Secured Party at a place designated by
Secured Party. If any notification of intended disposition of any Collateral is
required by law, such notification, if mailed, shall be deemed properly and
reasonably given if mailed at least five days before such disposition, postage
prepaid, addressed to Debtor at its place of business indicated in the opening
paragraph of this Security Agreement or at any address appearing on Secured
Party's records for Debtor. The expenses of pursuing, searching for, retaking,
receiving, holding, storing, safeguarding, insuring, accounting for,
advertising, preparing for sale or lease, selling, leasing and the like, plus
fees for attorneys, certified public accountants, auctioneers, brokers and/or
appraisers, and security guards, premiums for hazard insurance, and any other
costs or disbursements whatsoever incurred by or contracted for by Secured Party
in connection with the
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Collateral (including any of the foregoing incurred or contracted for by Secured
Party in connection with any bankruptcy or insolvency proceedings involving
Debtor)--shall all be chargeable to the Collateral and then to Debtor. Debtor
will be liable to Secured Party and on demand shall pay to Secured Party any
deficiency which may remain after such sale or other disposition, and Secured
Party agrees to remit to Debtor any surplus resulting therefrom after payment in
full of the Indebtedness and the foregoing expenses.
7. Upon Debtor's failure to perform any of its duties hereunder, Secured
Party may, but shall not be obligated to, perform any or all such duties, and
Debtor shall pay an amount equal to the expense thereof to Secured Party
forthwith upon written demand by Secured Party. No delay or omission by Secured
Party in exercising any right or remedy hereunder or with respect to any
Indebtedness shall operate as a waiver thereof or of any other right or remedy,
and no single or partial exercise thereof shall preclude any other or further
exercise thereof or the exercise of any other right or remedy. Secured Party may
remedy any default by Debtor hereunder or with respect to any Indebtedness in
any reasonable manner without waiving the default remedied and without waiving
any other prior or subsequent default by Debtor. All rights and remedies of
Secured Party hereunder are cumulative. Secured Party shall have no obligation
to take, and Debtor shall have the sole responsibility for taking, any and all
steps to preserve rights against any and all prior parties to any instrument or
chattel paper constituting Collateral, whether or not in Secured Party's
possession. Secured Party shall not be responsible to Debtor for loss or damage
resulting from Secured Party's failure to enforce or collect any proceeds,
chattel paper or account arising therefrom, or any instrument constituting
Collateral hereunder. Debtor waives protest of any instrument constituting
Collateral at any time held by Secured Party on which Debtor is in any way
liable and waives notice of any other action taken by Secured Party.
8. All the rights, remedies, options, privileges and elections given to
Secured Party hereunder shall inure to the benefit of its successors and
assigns, and shall be binding on the heirs, executors, administrators or legal
representatives, or the successors and assigns of Debtor. No modification,
rescission, waiver, release or amendment of any provision of this Security
Agreement shall be made except by a written agreement subscribed by Debtor and
by a duly authorized officer of Secured Party. Any partial invalidity of the
provisions hereof shall not invalidate the remaining portions hereof. This
Security Agreement shall be construed in accordance with the laws of the State
of New York.
9. As to the insurance referred to in paragraph 3 above, Debtor agrees
that not only will Secured Party be named as a loss payee, but that all policies
will include a Lender's Loss Payable Clause endorsement in favor of Secured
Party, and proof of same will be submitted to Secured Party.
10. Debtor hereby grants to Secured Party, a lien, security interest and
right of setoff as security for all liabilities and obligations to Secured
Party, whether now existing or hereafter
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arising, upon and against all deposits, credits, collateral and property, now or
hereafter in the possession, custody, safekeeping or control of Secured Party or
any entity under the control of Fleet Financial Group, Inc., or in transit to
any of them. At any time, without demand or notice, Secured Party may set off
the same or any part thereof and apply the same to any liability or obligation
of Debtor or any guarantor even though unmatured and regardless of the adequacy
of any other collateral securing the Loan. ANY AND ALL RIGHTS TO REQUIRE SECURED
PARTY TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO
SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE DEBTOR OR ANY GUARANTOR, ARE
HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
11. DEBTOR AND SECURED PARTY MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECURITY AGREEMENT OR
ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR
ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT
FOR SECURED PARTY TO ACCEPT THIS SECURITY AGREEMENT AND MAKE THE LOAN.
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IN WITNESS WHEREOF, Debtor has duly executed this Security Agreement as
of the 29th day of April, 1998.
DEBTOR: DECORA, INCORPORATED
By: ______________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President,
Administration Secretary
STATE OF NEW YORK )
)ss:
COUNTY OF ALBANY )
On the 27th day of April, 1998, before me personally came Xxxxxxx X.
Xxxxxxx, who being by me duly sworn, did depose and say that he resides in
Xxxxxxx Park, New York; that he is the Vice President, Administration Secretary
of DECORA, INCORPORATED, the corporation described in and which executed the
above instrument; and that he signed his name thereto by order of the Board of
Directors of said corporation.
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Notary Public
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Schedule A
List of Specific Trading Assets
If applicable - address and county location of all Collateral not at Debtor's
place of business
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