GENERAL SECURITY AGREEMENT New York
Debtor: Mod-Pac Corp., a New York
corporation with a business, address at 0000 Xxxxxxx Xxxxxx, Xxxxxxx Xxx Xxxx
00000.
Bank/Secured
Party: Manufacturers and Traders Trust Company, a New York
banking corporation with its banking offices at One M&T Plaza, Buffalo,
New York 14203 Attention: Office of General Counsel.
For good
and valuable consideration, the receipt and sufficiency of which is
acknowledged, and intending to be legally bound, Debtor agrees with Secured
Party as follows:
1. Security
Interests.
1.1 Grant. As
security for the prompt and complete payment and performance when due of all of
the Obligations, Debtor does hereby grant to Secured Party a continuing security
interest (“Security Interest”) in all personal property and fixtures of Debtor,
wherever located, whether now existing or owned or hereafter arising or
acquired, whether or not subject to the Uniform Commercial Code, as the same may
be in effect in the State of New York, as amended from time to time (“UCC”), and
whether or not affixed to any realty, including, without limitation, (i) all
accounts, chattel paper, investment property, deposit accounts, documents,
goods, equipment, farm products, general intangibles (including trademarks,
service marks, trade names, patents, copyrights, licenses and franchises),
instruments, inventory, money, letter of credit rights, causes of action
(including tort claims), and other personal property (including agreements and
instruments not constituting chattel paper or a document, general intangible or
instrument); (ii) all additions to, accessions to, substitutions for,
replacements of and supporting obligations of the foregoing; (iii) all proceeds
and products of the foregoing, including, without limitation, insurance
proceeds; and (iv) all business records and information relating to any of the
foregoing and any software or other programs for accessing and manipulating such
information (collectively, the “Collateral”). Debtor acknowledges and
agrees that the foregoing collateral description is intended to cover all assets
of Debtor; provided, however, it is acknowledged that “Collateral” shall not
include any equity interests in any foreign subsidiary that is not a first tier
subsidiary or any equity interests in any first tier subsidiary to the extent
the same represents in the aggregate more than 65% of the total combined voting
power of all classes of capital stock or similar equity interests of such
foreign subsidiary if (x) to grant such security interest would subject Debtor
to liability for a material amount of additional United States income tax by
virtue of Section 956 of the Internal Revenue Code.
1.2 Obligations. The
term “Obligations” means any and all indebtedness or other obligations of Debtor
to Secured Party under the Credit Documents, as hereafter defined,
however created or evidenced, regardless of kind, class or form, whether direct,
indirect, absolute or contingent , whether joint or several, whether from time
to time reduced and thereafter increased, or entirely extinguished and
thereafter reincurred, together with all extensions, renewals and replacements
thereof, and all interest, fees, charges, costs or expenses which accrue on or
in connection with the foregoing, including, without limitation, any
indebtedness or obligations (i) not yet outstanding but contracted for, or with
regard to which any other commitment by Secured Party exists; (ii) arising prior
to, during or after any pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable
in such proceeding;; or (iii) payable under this Agreement. The “Credit Documents”
means the Credit Agreement, the Collateral Documents, the Letters of Credit, or
any other documents now or hereafter executed pursuant to the terms or in
connection with the Credit Agreement. “Credit Agreement”
mean the Revolving Credit Agreement, dated 2010,
between Debtor and Secured Party as the same may be amended or amended and
restated from time to time. All capitalized terms not otherwise defined herein
have the meanings attributed to them in the Credit Agreement.
2. Covenants. Debtor
covenants and agrees as follows:
2.1 Perfection of Security
Interest. Debtor shall execute and deliver to Secured Party
such financing statements, control agreements or other documents, in form and
content satisfactory to Secured Party, as Secured Party may from time to time
reasonably request to perfect and continue the Security
Interest. Upon the request of Secured Party, Debtor shall deliver to
Secured Party any and all instruments, chattel paper, negotiable documents or
other documents evidencing or constituting any part of the Collateral properly
endorsed or assigned, in a manner satisfactory to Secured
Party. Until such delivery, Debtor shall hold such portion of the
Collateral in trust for Secured Party. Debtor shall pay all expenses
for the preparation, filing, searches and related costs in connection with the
grant and perfection of the Security Interest. Debtor authorizes
(both prospectively and retroactively) Secured Party to file financing
statements, and any continuations and amendments thereof, with respect to the
Collateral without Debtor’s signature. A photocopy or other
reproduction of any financing statement or this Agreement shall be sufficient as
a financing statement for filing in any jurisdiction.
2.2 Negative Pledge; Disposition
of Collateral. Debtor shall not grant or allow the imposition
of any lien, security interest or encumbrance on, or assignment of, the
Collateral except if such Lien is a Permitted Lien (as defined below) or
consented to in writing by Secured Party. Debtor shall not make or
permit to be made any sale, transfer or other disposition of the Collateral;
provided, however, that so long as Secured Party has not notified Debtor to the
contrary after the occurrence of and during the continuation of an Event of
Default, Debtor may in the ordinary course of business consistent with its past
practices and with prudent and standard practices used in the industry that is
the same or similar to that in which Debtor is engaged: (i) dispose of any
Collateral consisting of equipment that is obsolete or worn-out; (ii) sell or
exchange any Collateral consisting of equipment in connection with the
acquisition of other equipment that is at least as valuable as such equipment,
that Debtor intends to use for substantially the same purposes as such equipment
and that is not subject to any security interest or other lien or encumbrance;
(iii) collect Collateral consisting of accounts or assign such Collateral for
purposes of collection and use the proceeds of such Collateral; (iv)
sell or lease Collateral consisting of inventory; or sell any Collateral if such
sale is not prohibited under Section 6.1 of the Credit Agreement. A
sale, lease or other transfer of such Collateral consisting of inventory in the
ordinary course of Debtor’s business does not include a transfer in partial or
complete satisfaction of any liability or obligation or any bulk
sale.
2.3 Condition of Collateral;
Impermissible Use. Debtor shall keep the Collateral consisting
of goods in good condition and shall not commit or permit damage or destruction
(other than ordinary wear and tear) to any material portion of the
Collateral. Debtor shall not permit any material portion
of the Collateral consisting of goods (i) to be used in such a manner that
would violate any insurance policy or warranty covering the
Collateral such that there is a material risk of forfeiture of such insurance or
warranty or that would materially violate any applicable law of any
governmental authority (including any environmental law) now or hereafter in
effect; (ii) to become fixtures on any real property not owned by Debtor (unless
Secured Party has been provided with an acceptable landlord/mortgagee waiver or
has indicated that Secured Party shall not require a landlord waiver)
or become an accession to any goods not included in the Collateral; or (iii) to
be placed in any warehouse that may issue a negotiable document with regard to
such Collateral.
2.4 Modification to
Collateral. Debtor shall not, without Secured Party’s prior written
consent, grant any extension on, compound, settle for less than the full amount
of, release (in whole or in part), modify, cancel, or allow for any
substitution, credit or adjustment on Collateral consisting of accounts, chattel
paper, general intangibles, instruments, documents or investment property,
provided that so long as Secured Party shall not have notified Debtor to the
contrary after the occurrence and during the continuation of an Event of
Default, Debtor may grant to account debtors, or other persons obligated with
respect to the Collateral, extensions, credits, discounts, compromises or
settlements in the ordinary course of business consistent with its past
practices and consistent with prudent and standard practices used in the
industries that are the same or similar to those in which Debtor is
engaged.
2.5 Titled
Goods. Debtor shall cause all goods included in the Collateral
to be properly titled and registered to the extent required by applicable
law. Upon the request of Secured Party, Debtor shall cause the
interest of Secured Party to be properly indicated on any certificate of title
relating to such goods and deliver to Secured Party each such certificate, and
any additional evidence of ownership, certificates of origin or other documents
evidencing any interest in such goods.
2.6 Insurance. Debtor
shall, at its own expense and at all times, maintain effective insurance
policies covering damage to persons and against fire, flood, theft and all other
risks to which the Collateral may be subject, all in such amounts, with such
deductibles and issued by such insurance company as shall be reasonably
satisfactory to Secured Party. Such insurance policies shall have all
endorsements that Secured Party may require and shall further (i) name Secured
Party, exclusively, as the additional insured on the casualty insurance and the
lender’s loss payee and/or mortgagee on the hazard insurance; (ii) provide that
Secured Party shall receive a minimum of thirty (30) days prior written notice
of any amendment or cancellation; and (iii) insure Secured Party notwithstanding
any act or neglect of Debtor or other owner of the property described in such
insurance. If Debtor fails to obtain the required insurance as
provided herein, Secured Party may, but is not obligated, to obtain such
insurance as Secured Party may reasonably deem appropriate, including, without
limitation, if Secured Party so chooses, “single interest insurance” which will
cover only Secured Party’s interest in the Collateral. Debtor shall
pay or reimburse to Secured Party the cost of such insurance. Secured
Party shall have the option after the occurrence and during the continuance of
an Event of Default, in its reasonable discretion, to hold insurance proceeds as
part of the Collateral, apply any insurance proceeds toward the Obligations or
allow the Debtor to apply the insurance proceeds towards repair or replacement
of the item of Collateral in respect of which such proceeds were
received. Upon the reasonable request of Secured Party, Debtor shall
from time to time deliver to Secured Party such insurance policies, or other
evidence of such policies satisfactory to Secured Party, and such other related
information Secured Party may reasonably request.
2.7 Collateral
Information. Debtor shall provide all information, in form and
substance reasonably satisfactory to Secured Party, that Secured Party shall
from time to time reasonably request to (i) identify the
nature, extent, value, age and location of any of the Collateral, or (ii)
identify any account debtor or other party obligated with respect to any chattel
paper, general intangible, instrument, investment property, document or deposit
account included in the Collateral.
2.8 Intentionally
Omitted.
2.9 Taxes; Licenses; Compliance
with Laws. Before the end of any applicable grace period,
Debtor shall pay each tax, assessment, fee and charge imposed by any
governmental authority upon the Collateral, the ownership, disposition or use of
any of the Collateral, this Agreement or any instrument evidencing any of the
Obligations except to the extent such tax, assessment, fee or charge is being
contested in good faith by the Debtor. Debtor shall maintain in full
force and effect each material license, franchise or other authorization needed
for any ownership, disposition or use of the Collateral and the conduct of its
business, operations or affairs unless the failure to so obtain or maintain such
license, franchise or other authorization might not be reasonably be expected to
have a Material Adverse Effect as defined in the Credit
Agreement. Debtor shall comply with all applicable law of any
governmental authority (including any environmental law), now or hereafter in
effect, applicable to the ownership, disposition or use of the Collateral or the
conduct of its business, operations or affairs and with respect to which the
failure to comply might reasonably be expected to have a material adverse effect
on its business, operations or affairs.
2.10 Records;
Legend. Debtor shall maintain accurate and complete books and
records relating to the Collateral in conformity with generally accepted
accounting principles consistently applied. At Secured Party’s
request, Debtor will legend, in form and manner satisfactory to Secured Party,
its books and records to indicate the Security Interest.
2.11 Intentionally
Omitted.
2.12 Notifications of
Change. Promptly upon acquiring knowledge or reason to know of
any of the following, Debtor shall notify Secured Party of the occurrence or
existence of (i) any Event of Default; (ii) any event or condition that, after
notice, lapse of time or after both notice and lapse of time, would constitute
an Event of Default; (iii) any account or general intangible that arises out of
a contract with any governmental authority (including the United States); (iv)
any event or condition that has or (so far as can be reasonably foreseen) will
or might reasonably be expected to have any material adverse effect on the
Collateral (including a material loss, destruction or theft of, or of any damage
to, the Collateral, material decline in value of the Collateral or a material
default by an account debtor or other party’s performance of obligations with
respect to the Collateral), on Debtor or its business, operations, affairs or
condition (financial or otherwise).
2.13 Lien
Law. If any account or general intangible included in the
Collateral represents money owing pursuant to any contract for the improvement
of real property or for a public improvement for purposes of the Lien Law of the
State of New York (the “Lien Law”), Debtor shall (i) give Secured Party notice
of such fact; (ii) receive and hold any money advanced by Secured Party with
respect to such account or general intangible as a trust fund to be first
applied to the payment of trust claims as such term and/or concept is defined in
the Lien Law (in Section 71 thereof, or otherwise); and (iii) until such trust
claim is paid, not use or permit the use of any such money for any purpose other
than the payment of such trust claims.
2.14 Protection of Collateral;
Further Assurances. Debtor shall, at its own cost, faithfully
preserve, defend and protect the Security Interest as a prior perfected security
interest in the Collateral under the UCC and other applicable law, superior and
prior to the rights of all third parties (other than those permitted pursuant to
Section 3.1) and shall defend the Collateral against all setoffs, claims,
counterclaims, demands and defenses. At the request of Secured Party,
Debtor shall do, obtain, make, execute and deliver all such additional and
further acts, things, deeds, assurances and instruments as Secured Party may
deem reasonably necessary or advisable from time to time in order to
attach, continue, preserve, perfect or protect the Security Interest and Secured
Party’s rights hereunder including obtaining waivers (in form and content
acceptable to Secured Party) from landlords, warehousemen and
mortgagees. Debtor hereby irrevocably appoints Secured Party, its
officers, employees and agents, or any of them, as attorneys-in-fact for Debtor
with full power and authority in the place and stead of Debtor and in the name
of Debtor or its own name from time to time in Secured Party’s discretion, to
perform all acts which Secured Party deems reasonably appropriate to attach,
continue, preserve or perfect and continue the Security Interest, including
signing for Debtor (to the extent such signature may be required by applicable
law) UCC-1 financing statements, UCC-3 amendment or other instruments and
documents to attach, continue, preserve or perfect the Security
Interest. This power of attorney, being coupled with an interest, is
irrevocable and shall not be affected by the subsequent disability or
incompetence of Debtor.
3. Representations and
Warranties. Debtor represents, warrants and agrees as
follows:
3.1 Title. Debtor
holds good and marketable title to the Collateral free and clear from any
security interest or other lien or encumbrance of any party, other than the
Security Interest or such liens, security interests or other liens or
encumbrances specifically permitted by Secured Party or set forth on Exhibit A
hereto (“Permitted Liens”). Debtor has not made any prior pledge,
encumbrance, assignment or other disposition of any of the Collateral except for
the Permitted Liens.
3.2 Authority. If
Debtor is a business entity, it is duly organized, validly existing and in good
standing under the laws of the above-named state of
organization. Debtor has the full power and authority to grant the
Security Interest and to execute, deliver and perform its obligations in
accordance with this Agreement. The execution and delivery of this
Agreement will not (i) violate any applicable law of any governmental authority
or any judgment or order of any court, other governmental authority or
arbitrator; (ii) violate any agreement governing Debtor or to which Debtor is a
party; or (iii) result in a security interest or other lien or encumbrance on
any of Debtor’s assets, except in favor of Secured Party. Debtor’s
certificate of incorporation, by-laws or other organizational documents do not
prohibit any term or condition of this Agreement. Each authorization,
approval or consent from, each registration and filing with, each declaration
and notice to, and each other act by or relating to, any party required as a
condition of Debtor’s execution, delivery or performance of this Agreement
(including any shareholder or board of directors or similar approvals) has been
duly obtained and is in full force and effect. Debtor has the power
and authority to transact the business in which it is engaged and is duly
licensed or qualified and in good standing in each jurisdiction in which the
conduct of its business or ownership of property requires such licensing or such
qualifications and where the failure to so license or qualify might reasonably
be expected to have a material adverse effect on its business or
assets.
3.3 Judgments and
Litigation. There is no pending or threatened claim, audit,
investigation, action or other legal proceeding or judgment or order of any
court, agency or other governmental authority or arbitrator which involves
Debtor or the Collateral and which might have a material adverse effect upon the
Collateral, the Debtor, its business, operations, affairs or condition
(financial or otherwise), or threaten the validity of this Agreement or any
related document or action. Debtor will promptly notify Secured Party
upon acquiring knowledge of the foregoing.
3.4 Enforceability of
Collateral. Instruments, chattel paper, accounts or documents
which constitute any part of the Collateral are genuine and enforceable in
accordance with their terms, comply with the applicable law of any governmental
authority concerning form, content, manner of preparation and execution, and all
persons appearing to be obligated on such Collateral have authority and capacity
to contract and are in fact obligated as they appear to be on such Collateral,
except in each case for such matters that arise in the ordinary course of
business and will not have a material adverse effect on the value of the
Collateral taken as a whole . There are no restrictions on any
assignment or other transfer or grant of the Security Interest by Debtor, except
for those restrictions that arise in the ordinary course of business (for
example with respect to computer software licenses). Each sum
represented by Debtor from time to time as owing on accounts, instruments,
deposit accounts, chattel paper and general intangibles constituting any part of
the Collateral by account debtors and other parties with respect to such
Collateral is the sum actually and unconditionally owing by account debtors and
other parties with respect thereto at such time, except for applicable normal
cash discounts, disputes, discrepancies and other matters that arise in the
ordinary course of business and do not have a material adverse effect on the
Collateral taken as whole None of the Collateral is subject to any
defense, set-off, claim or counterclaim of a material nature against Debtor
except as to which Debtor has notified Secured Party in writing and except for
such matters that arise in the ordinary course of business and do not have a
material adverse effect on the Collateral taken as a whole..
3.5 Location of Chief Executive
Office, Records, Collateral. The locations of the following
are listed on page one of this Agreement or, if different or additional, on
Exhibit A hereto: (i) Debtor’s residence, principal place of business
and chief executive office; (ii) the office in which Debtor maintains its books
or records relating to the Collateral; (iii) the facility (including any storage
facility) at which now owned or subsequently acquired inventory, equipment and
fixtures constituting any part of the Collateral shall be kept; and (iv) the
real property on which any crop included in the Collateral is growing or is to
be grown, or on which any timber constituting any part of the Collateral is or
is to be standing. Debtor will not effect or permit any change in any
of the foregoing locations (or remove or permit the removal of the records or
Collateral therefrom, except for mobile equipment included in the Collateral
which may be moved to another location for not more than thirty (30) days)
without thirty (30) days prior written notice to Secured Party and all actions
deemed reasonably necessary by Secured Party to maintain the Security Interest
intended to be granted hereby at all times fully perfected and in full force and
effect have been taken. All of the locations listed on page one or
Exhibit A are owned by Debtor, of if not, by the party(ies) identified on
Exhibit A.
3.6 Structure;
Name. Debtor’s organizational structure, state of registration
and organizational identification number (if any) are stated accurately on page
one of this Agreement, and its full legal name and any trade name used to
identify it are stated accurately on page one of this Agreement, or if different
or additional are listed on Exhibit A hereto. Debtor will not change its name,
any trade names or its identity, its organizational structure, state of
registration or organizational identification number without thirty (30) days
prior written notice to Secured Party. All actions deemed necessary
by Secured Party to maintain the Security Interest intended to be granted hereby
at all times fully perfected and in full force and effect have been
taken.
4. Performance and Expenditures by
Secured Party. If Debtor fails to perform or comply with any
of the terms hereof, Secured Party, at its option, and upon prior notice to
Debtor, but without any obligation so to do, may perform or comply, or otherwise
cause performance or compliance, with such terms including the payment or
discharge of all taxes, fees, security interest or other liens, encumbrances or
claims, at any time levied or placed on the Collateral. An election
to make expenditures or to take action or perform an obligation of Debtor under
this Agreement, after Debtor’s failure to perform, shall not affect Secured
Party’s right to declare an Event of Default and to exercise its
remedies. Nor shall the provisions of this Section relieve Debtor of
any of its obligations hereunder with respect to the Collateral or impose any
obligation on Secured Party to proceed in any particular manner with respect to
the Collateral.
5. Duty of Secured
Party. Secured Party’s sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession shall
be to deal with it in the same commercially reasonable manner as Secured Party
deals with similar property for its own account. Neither Secured
Party nor its directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of the
Collateral upon the request of Debtor or any other person or to take any other
action whatsoever with regard to the Collateral. The powers conferred
on Secured Party hereunder are solely to protect Secured Party’s interests in
the Collateral and shall not impose any duty upon any Secured Party to exercise
any such powers. Secured Party shall be accountable only for amounts
that it actually receives as a result of the exercise of its powers under this
Agreement, and neither it nor its officers, directors, employees or agents shall
be responsible to Debtor for any act or failure to act hereunder, except for its
own gross negligence or willful misconduct or failure to act in a
commercially reasonable manner to the extent required to do so under
applicable law.
6. Certain
Rights and Remedies.
6.1 Inspection;
Verification. Secured Party, and such persons as it may
designate, shall have the right from time to time during normal business hours
to (i) audit and inspect (a) the Collateral, (b) all books and records related
thereto (and make extracts and copies from such records), and (c) the premises
upon which any of the Collateral or books and records may be located; (ii)
discuss Debtor’s business, operations, affairs or condition (financial or
otherwise) with its officers, accountants; and (iii) verify the validity,
amount, quality, quantity, value, condition and status of, or any other matter
relating to the Collateral in any manner and through any medium Secured Party
may consider appropriate (including contacting account debtors or third party
possessing the Collateral for purpose of making such
verification). Debtor shall furnish all assistance and information
and perform any acts Secured Party may require regarding
thereto. Debtor shall bear the cost and expense of any such
inspection and verification after the occurrence of an Event of
Default.
6.2 Notification of Security
Interest. After the occurrence and during the continuation of
an Event of Default, Secured Party may notify any or all account debtors and
other person obligated with respect to the Collateral of the Security Interest
therein. Upon the request of Secured Party after the occurrence and
during the continuation of an Event of Default, Debtor agrees to enter into such
warehousing, lockbox or other custodial arrangement with respect to any of the
Collateral that Secured Party shall deem reasonably necessary or
desirable.
6.3 Application of
Proceeds. After the occurrence and during the continuation of
an Event of Default, Secured Party may apply the proceeds from the sale, lease
or other disposition or realization upon the Collateral to the Obligations in
such order and manner and at such time as Secured Party shall, in its sole
discretion, determine. Debtor shall remain liable for any deficiency
if the proceeds of any sale, lease or other disposition or realization upon the
Collateral are insufficient to pay the Obligations. Any proceeds
received by Debtor from the Collateral after the occurrence and during the
continuation of an Event of Default shall (i) be held by Debtor in trust for
Secured Party in the same medium in which received; (ii) not be commingled with
any assets of Debtor; and (iii) be delivered to Secured Party in the form
received, properly indorsed to permit collection. After the
occurrence and during the continuation of an Event of Default, Debtor shall
promptly notify Secured Party of the return to or repossession by Debtor of
goods constituting part of the Collateral, and Debtor shall hold the same in
trust for Secured Party and shall dispose of the same as Secured Party
directs.
6.4 Income and Proceeds of
Instruments and Investment Property. So long as no Event of
Default has occurred and is continuing, Debtor reserves the right to request to
receive all cash income or cash distribution (whether in cash or evidenced by
check) payable on account of any instrument or investment property constituting
part of the Collateral (collectively, “Cash Distribution”). Until
actually paid, all rights in the foregoing shall remain subject to the Security
Interest. Any other income, dividend, distribution, increase in or
profits (including any stock issued as a result of any stock split or dividend,
any capital distributions and the like) on account of any instrument or
investment property constituting part of the Collateral and, after the
occurrence and during the continuation of an Event of Default, all Cash
Distributions, shall be delivered to Secured Party immediately upon receipt, in
the exact form received and without commingling with other property which may be
received by, paid or delivered to Debtor or for Debtor’s account, whether as an
addition to, in discharge of, in substitution of, or in exchange of the
Collateral. Until delivery, such Collateral shall be held in trust
for Secured Party.
6.5 Registered Holder of the
Collateral. After the occurrence and during the continuation
of an Event of Default, Secured Party shall have the right to transfer to or
register (with or without reference to this Agreement) in the name of Secured
Party or its nominee any investment property, general intangible, instrument or
deposit account constituting part of the Collateral so that Secured Party or
such nominee shall appear as the sole owner of record thereof. After
the occurrence of any Event of Default, Debtor waives all rights to be advised
of or to receive any notices, statements or communications received by Secured
Party or its nominee as such record owner, and agrees that no proxy or proxies
given by Secured Party to Debtor or its designee as aforesaid shall thereafter
be effective.
7. Default.
7.1 Events of
Default. Any of the following events or conditions shall
constitute an “Event of Default”: (i) the occurrence of an Event of
Default under the Credit Agreement; or the breach by Debtor of any term or
condition of this Agreement if such breach has not been cured within 20
days of written notice from Secured Party to Debtor.
7.2 Rights and Remedies Upon
Default. Upon the occurrence of any Event of Default, Secured
Party without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law) to or
upon Debtor or any other person (all and each of which demands, presentments,
protests, advertisements and notices are hereby waived), may exercise all rights
and remedies of a secured party under the UCC, under other applicable law, in
equity or otherwise or available under in this Agreement including:
7.2.1 Obligations Immediately Due;
Termination of Lending. Secured Party may declare all or any
part of any Obligations not payable on demand to be immediately due and payable
without demand or notice of any kind. All or any part of any
Obligations whether or not payable on demand, shall be immediately due and
payable automatically upon the occurrence of an Event of Default in Section 7.1
(vi) above. The provisions hereof are not intended in any way to
affect any rights of Secured Party with respect to any Obligations which may now
or hereafter be payable on demand. Secured Party may terminate any
obligation it may have to grant any additional loan, credit or other financial
accommodation to Debtor.
7.2.2 Access to
Collateral. Secured Party, or its agents, may peaceably retake
possession of the Collateral with or without notice or process of law, and for
that purpose may enter upon any premises where the Collateral is located and
remove the same. At Secured Party’s request, Debtor shall assemble
the Collateral and deliver it to Secured Party or any place designated by
Secured Party, at Debtor’s expense.
7.2.3 Sell
Collateral. Secured Party shall have the right to sell, lease
or otherwise dispose of the Collateral in one or more parcels at public or
private sale or sales upon such terms and conditions as it may deem advisable
and at such prices as it may deem best, for cash or on credit or for future
delivery without assumption of any credit risk provided that such disposition is
conducted in a commercially reasonable matter. Each purchaser at any
such sale shall hold the property sold absolutely, free from any claim or right
on the part of Debtor. Debtor hereby waives (to the extent permitted
by law) all rights of redemption, stay and appraisal which Debtor now has or may
at any time in the future have under any applicable law now existing or
hereafter enacted. Secured Party shall have the right to use Debtor’s
premises and any materials or rights of Debtor (including any intellectual
property rights) without charge for such sales or disposition of the Collateral
or the completion of any work in progress for such times as Secured Party may
see fit. Without in any way requiring notice to be given in the
following time and manner, Debtor agrees that with respect to any notice by
Secured Party of any sale, lease or other disposition or realization or other
intended action hereunder or in connection herewith, whether required by the UCC
or otherwise, such notice shall be deemed reasonable and proper if given at
least ten (10) days before such action in the manner described below in the
Section entitled “Notices”.
7.2.4 Collect
Revenues. Secured Party may either directly or through a
receiver (i) demand, collect and xxx on any Collateral consisting of accounts or
any other Collateral including notifying account debtors or any other persons
obligated on the Collateral to make payment on the Collateral directly to
Secured Party; (ii) file any claim or to take any other action or proceeding in
any court of law or equity or otherwise deemed appropriate by Secured Party with
respect to the Collateral or to enforce any other right in respect of the
Collateral; (iii) take control, in any manner, of any payment or proceeds from
the Collateral; (iv) prosecute or defend any suit, action or proceeding brought
against Debtor with respect to the Collateral; (v) settle, compromise or adjust
any and all claims arising under the Collateral or, to give such discharges or
releases as Secured Party may deem appropriate; (vi) receive and collect all
mail addressed to Debtor, direct the place of delivery thereof to any location
designated by Secured Party; to open such mail; to remove all contents
therefrom; to retain all contents thereof constituting or relating to the
Collateral; (vii) execute, sign or endorse any and all claims, endorsements,
assignments, checks or other instruments with respect to the Collateral; or
(viii) generally, use, sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any of the Collateral; and Debtor hereby
irrevocably appoints Secured Party, its officers, employees and agents, or any
of them, as attorneys-in-fact for Debtor with full power and authority in the
place and stead of Debtor and in the name of Debtor or in its own name from time
to time in Secured Party’s discretion, to take any and all appropriate action
Secured Party deems necessary or desirable to accomplish any of the foregoing or
otherwise to protect, preserve, collect or realize upon the Collateral or to
accomplish the purposes of this Agreement. Debtor revokes each power
of attorney (including any proxy) heretofore granted by Debtor with regard to
the Collateral. This power of attorney, being coupled with an
interest, is irrevocable and shall not be affected by the subsequent disability
or incompetence of Debtor.
7.2.5 Setoff. Secured
Party may place an administrative hold on and set off against the Obligations
any property held in a deposit or other account with Secured Party or any of its
Affiliates or otherwise owing by Secured Party or any of its Affiliates in any
capacity to Debtor. Such set-off shall be deemed to have been exercised
immediately at the time Secured Party or such Affiliate elects to do
so.
8. Expenses. Debtor
shall pay to Secured Party on demand all reasonable costs and expenses
(including all reasonable fees and disbursements of all counsel retained for
advice, suit, appeal or other proceedings or purpose and of any experts or
agents it may retain), which Secured Party may incur in connection with (i) the
administrative fees Secured Party may impose for the preparation of discharges,
releases or assignments to third-parties; (ii) the custody or preservation of,
or the sale, lease or other disposition or realization on the Collateral; (iii)
the enforcement and collection of any Obligations or any guaranty thereof; (iv)
the exercise, performance ,enforcement or protection of any of the rights of
Secured Party hereunder; or (v) the failure of Debtor to perform or observe any
provisions hereof. After such demand for payment of any cost, expense
or fee under this Section or elsewhere under this Agreement, Debtor shall pay
interest at the highest default rate specified in any instrument evidencing any
of the Obligations from the date payment is demanded by Secured Party to the
date reimbursed by Debtor. All such costs, expenses or fees under
this Agreement shall be added to the Obligations.
9. Indemnification. Debtor
shall indemnify Secured Party and its Affiliates and each officer, employee,
accountant, attorney and other agent thereof (each such person being an
“Indemnified Party”) on demand, without any limitation as to amount, against
each liability, cost and expense (including all reasonable fees and
disbursements of all counsel retained for advice, suit, appeal or other
proceedings or purpose, and of any expert or agents an Indemnified Party may
retain) heretofore or hereafter imposed on, incurred by or asserted against any
Indemnified Party (including any claim involving any allegation of any violation
of applicable law of any governmental authority (including any environmental law
or criminal law)), however asserted and whether now existing or hereafter
arising, arising out of any ownership, disposition or use of any of the
Collateral; provided, however, the foregoing indemnity shall not apply to
liability, cost or expense to the extent attributable to an Indemnified Party’s
gross negligence or willful misconduct or its failure to act in a commercially
reasonable manner to the extent required to do so under applicable
law. This indemnity agreement shall survive the termination of this
Agreement. Any amounts payable under this or any other section of
this Agreement shall be additional Obligations secured hereby.
10. Miscellaneous.
10.1 Notices. Any
demand or notice hereunder or under any applicable law pertaining hereto shall
be in writing and duly given if delivered to Debtor (at its address on Secured
Party’s records) or to Secured Party (at the address on page one and separately
to Secured Party’s officer responsible for Debtor’s relationship with Secured
Party). Such notice or demand shall be deemed sufficiently given for all
purposes when delivered (i) by personal delivery and shall be deemed effective
when delivered, or (ii) by mail or courier and shall be deemed effective three
(3) business days after deposit in an official depository maintained by the
United States Post Office for the collection of mail or one (1) business day
after delivery to a nationally recognized overnight courier service (e.g.,
Federal Express). Notice by e-mail is not valid notice under this or
any other agreement between Debtor and Secured Party.
10.2 Governing Law;
Jurisdiction. This Agreement has been delivered to and
accepted by Secured Party and will be deemed to be made in the State of New
York. Except as otherwise provided under federal law, this Agreement
will be interpreted in accordance with the laws of the State of New York
excluding its conflict of laws rules. DEBTOR HEREBY IRREVOCABLY CONSENTS TO
THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN ERIE COUNTY OR THE
WESTERN DISTRICT OF THE STATE OF NEW YORK IN
A COUNTY OR JUDICIAL DISTRICT WHERE SECURED PARTY MAINTAINS A BRANCH
AND CONSENTS THAT
SECURED PARTY MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT DEBTOR’S
ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING
CONTAINED IN THIS AGREEMENT WILL PREVENT SECURED PARTY FROM BRINGING ANY ACTION,
ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST DEBTOR
INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF DEBTOR WITHIN ANY
OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC
JURISDICTION. Debtor acknowledges and agrees that the venue
provided above is the most convenient forum for both Secured Party and
Debtor. Debtor waives any objection to venue and any objection based
on a more convenient forum in any action instituted under this
Agreement.
10.3 Security Interest
Absolute. All rights of Secured Party hereunder, the Security
Interest and all obligations of Debtor hereunder shall be absolute and
unconditional irrespective of (i) any filing by or against Debtor of any
petition in bankruptcy or any action under federal or state law for the relief
of debtors or the seeking or consenting to of the appointment of an
administrator, receiver, custodian or similar officer for the wind up of its
business; (ii) any lack of validity or enforceability of any agreement with
respect to any of the Obligations, (iii) any change in the time, manner or place
of payment of, or in any other term of, all or any of the Obligations, or any
other amendment or waiver of or any consent to any departure from any agreement
or instrument with respect to the Obligations, (iv)any exchange, release or
non-perfection of any lien or any release or amendment or waiver of or consent
under or departure from any guarantee, securing or guaranteeing all or any of
the Obligations, or (v) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, Debtor in respect of the Obligations or
this Agreement. If, after receipt of any payment of all or any part
of the Obligations, Secured Party is for any reason compelled to surrender such
payment to any person or entity, because such payment is determined to be void
or voidable as a preference, impermissible setoff, or a diversion of trust
funds, or for any other reason, such payment shall be reinstated as part of the
Obligations and this Agreement shall continue in full force notwithstanding any
contrary action which may have been taken by Secured Party in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to
Secured Party’s rights under this Agreement and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
10.4 Remedies Cumulative;
Preservation of Rights. The rights and remedies herein are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies which Secured Party may have under other agreements now
or hereafter in effect between Debtor and Secured Party, at law (including under
the UCC) or in equity. No failure or delay of Secured Party in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. Debtor expressly disclaims any reliance on any course
of dealing or usage of trade or oral representation of Secured Party including
representations to make loans to Debtor. No notice to or demand on
Debtor in any case shall entitle Debtor to any other or further notice or demand
in similar or other circumstances.
10.5 Joint and Several;
Successors and Assigns. If there is more than one Debtor, each
of them shall be jointly and severally liable for all amounts, which become due,
and the performance of all obligations under this Agreement and the term
“Debtor” shall include each as well as all of them. This Agreement
shall be binding upon Debtor and upon its heirs and legal representatives, its
successors and assignees, and shall inure to the benefit of, and be enforceable
by, Secured Party, its successors and assignees and each direct or indirect
assignee or other transferee of any of the Obligations; provided, however, that
this Agreement may not be assigned by Debtor without the prior written consent
of Secured Party.
10.6 Waivers; Changes in
Writing. No course of dealing or other conduct, no oral
agreement or representation made by Secured Party or usage of trade shall
operate as a waiver of any right or remedy of Secured Party. No
waiver of any provision of this Agreement or consent to any departure by Debtor
therefrom shall in any event be effective unless made specifically in writing by
Secured Party and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No
modification to any provision of this Agreement shall be effective unless made
in writing in an agreement signed by Debtor and Secured Party.
10.7 Interpretation. Unless
the context otherwise clearly requires, references to plural includes the
singular and references to the singular include the plural; the word “or” has
the inclusive meaning represented by the phrase “and/or”; the word “including”,
“includes” and “include” shall be deemed to be followed by the words “without
limitation”; and captions or section headings are solely for convenience and not
part of the substance of this Agreement. Any representation,
warranty, covenant or agreement herein shall survive execution and delivery of
this Agreement and shall be deemed continuous. Each provision of this
Agreement shall be interpreted as consistent with existing law and shall be
deemed amended to the extent necessary to comply with any conflicting
law. If any provision nevertheless is held invalid, the other
provisions shall remain in effect. Debtor agrees that in any legal
proceeding, a photocopy of this Agreement kept in Secured Party’s course of
business may be admitted into evidence as an original. Terms not
otherwise defined in this Agreement shall have the meanings attributed to such
terms in the UCC.
10.8 Waiver of Jury
Trial. DEBTOR
AND SECURED PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY
RIGHT TO TRIAL BY JURY DEBTOR AND SECURED PARTY MAY HAVE IN ANY ACTION OR
PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS AGREEMENT OR ANY
TRANSACTIONS RELATED HERETO. DEBTOR REPRESENTS AND WARRANTS THAT NO
REPRESENTATIVE OR AGENT OF SECURED PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SECURED PARTY WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THIS JURY TRIAL WAIVER. DEBTOR ACKNOWLEDGES THAT SECURED
PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
PROVISIONS OF THIS SECTION.
|
Dated
: June 9, 2010
|
|
|
MOD-PAC
CORP.
|
|
|
By: /s/ Xxxxxx X. Xxxxx
|
|
|
Xxxxxx
X. Xxxxx, Vice President of Finance
|
|
|
|
|
FOR
SECURED PARTY USE ONLY:
|
|
|
Authorization
confirmed:
|
|
|
If
Debtor’s Obligations arise under a guaranty in favor of Secured Party,
list the name whose indebtedness is being guaranteed under such
guaranty:
|
|
|
|
|
Exhibit
A
|
1.
|
Permitted
Liens (§3.1):
|
(a) Liens
of carriers, warehousemen, artisans, bailees, mechanics and materialmen incurred
in the ordinary course of business securing sums not overdue; (b) liens incurred
in the ordinary course of business in connection with workmen’s compensation,
unemployment insurance or other forms of governmental insurance or benefits,
relating to employees, securing sums (i) not overdue or (ii) being diligently
contested in good faith provided that adequate reserves with respect thereto are
maintained on the books and records of Debtor in conformity with generally
accepted accounting principles; and (c) liens for taxes (i) not yet due or (ii)
being diligently contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on the books of
Debtor in conformity with generally accepted accounting principles.
(b) Those
liens set forth in the UCC Memorandum dated June 4, 2010, attached hereto as
Exhibit
B.
|
2.
|
Residence,
principal place of business or chief executive office
(§3.5(i))
|
0000
Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx
|
3.
|
Location
of Books and Records (§3.5(ii))
|
0000
Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx
|
4.
|
Location
of Inventory, Equipment, Fixtures, Crops or Timber (§3.5(iii) and
§3.5(iv))
|
1745,
1801, 1803, 1805, 1807, 0000 Xxxxxxx Xxxxxx, Xxxxxxx Xxx Xxxx
|
5.
|
Locations
Not Owned by Debtor and Name of Record Owner
(§3.5)
|
1803
and1807 Elmwood Avenue, Buffalo, New York owned by NewBuff Associates LLC and
leased to Debtor’s subsidiary, 0000-0000 Xxxxxxx Xxxxxx
LLC
|
6.
|
Trade
Name, “Doing Business As” Name or Assumed Name
(§3.6)
|
Krepe-Kraft
EXHIBIT
B
UCC
MEMORANDUM
MEMORANDUM
|
TO:
|
Xxxxx
Xxxxxxxx
|
|
FROM:
|
Xxxxxxxx
Xxxxxxxx
|
|
DATE:
|
June
4, 2010
|
|
RE:
|
Mod-Pac
Corp. (NY)
|
|
Federal
|
||||
|
Bankruptcy:
|
Clear
|
|||
|
Civil
Judgments:
|
Clear
|
|||
|
New York Secretary of
State
|
||||
|
Federal
Tax Liens:
|
Clear
|
|||
|
UCC
Filings:
|
11
|
|||
|
(1)
|
File
Number:
|
185174
|
(Original)
|
|
|
File
Date:
|
9/27/01
|
|||
|
Secured
Party:
|
HSBC
Business Credit (USA) Inc.
|
|||
|
Collateral:
|
Equipment
(Printing Press)
|
|||
|
File
Number:
|
200604075335290
|
(Continuation)
|
||
|
File
Date:
|
4/7/06
|
|||
|
Secured
Party:
|
HSBC
Business Credit (USA) Inc.
|
|||
|
(2)
|
File
Number:
|
200702235191145
|
(Original)
|
|
|
File
Date:
|
2/23/07
|
|||
|
Secured
Party:
|
Xxxxxxx
Kodak Company
|
|||
|
Collateral:
|
Equipment
|
|||
|
(3)
|
File
Number:
|
200702235191210
|
(Original)
|
|
|
File
Date:
|
2/23/07
|
|||
|
Secured
Party:
|
Xxxxxxx
Kodak Company
|
|||
|
Collateral:
|
Equipment
|
|||
|
(4)
|
File
Number:
|
200702235191258
|
(Original)
|
|
|
File
Date:
|
2/23/07
|
|||
|
Secured
Party:
|
Xxxxxxx
Kodak Company
|
|||
|
Collateral:
|
Equipment
|
|||
|
(5)
|
File
Number:
|
200710085980129
|
(Original)
|
|
|
File
Date:
|
10/8/07
|
|||
|
Secured
Party:
|
Xerox
Corporation
|
|||
|
Collateral:
|
Leased
Equipment
|
|||
|
(6)
|
File
Number:
|
200711150890788
|
(Original)
|
|
|
File
Date:
|
11/15/07
|
|||
|
Secured
Party:
|
General
Electric Capital Corporation
|
|||
|
Collateral:
|
Equipment
|
|||
|
(7)
|
File
Number:
|
200711160894396
|
(Original)
|
|
|
File
Date:
|
11/16/07
|
|||
|
Secured
Party:
|
XPEDX
Div of International Paper
|
|||
|
Collateral:
|
Consignment
Inventory
|
|||
|
(8)
|
File
Number:
|
200712266258501
|
(Original)
|
|
|
File
Date:
|
12/26/07
|
|||
|
Secured
Party:
|
TCF
Equipment Finance, Inc.
|
|||
|
Collateral:
|
Leased
Equipment
|
|||
|
File
Number:
|
200804105389890
|
(Amendment)
|
||
|
File
Date:
|
4/10/08
|
|||
|
Secured
Party:
|
TCF
Equipment Finance, Inc.
|
|||
|
Collateral:
|
Leased
Equipment
|
|||
|
(9)
|
File
Number:
|
200803245310892
|
(Original)
|
|
|
File
Date:
|
3/24/08
|
|||
|
Secured
Party:
|
Xxxxxxx
Kodak Company
|
|||
|
Collateral:
|
Equipment
|
|||
|
(10)
|
File
Number:
|
200812178492300
|
(Original)
|
|
|
File
Date:
|
12/17/08
|
|||
|
Secured
Party:
|
X.X.
Xxxxxxx Co., Inc.
|
|||
|
Collateral:
|
Equipment
|
|||
|
(11)
|
File
Number:
|
200908075721229
|
(Original)
|
|
|
File
Date:
|
8/7/09
|
|||
|
Secured
Party:
|
IBM
Credit LLC
|
|||
|
Collateral:
|
Leased
Equipment
|
|
Erie County
|
||||
|
State
Tax Liens:
|
Clear
|
|||
|
Federal
Tax Liens:
|
Clear
|
|||
|
Civil
Judgments:
|
Clear
|
|||
|
UCC
Filings:
|
1
|
|||
|
(1)
|
File
Number:
|
Q96/8016
|
(Original)
|
|
|
File
Date:
|
10/5/01
|
|||
|
Secured
Party:
|
HSBC
Business Credit (USA) Inc.
|
|||
|
Collateral:
|
Equipment/Fixtures
|
|||
|
File
Number:
|
Q96/8016
|
(Continuation)
|
||
|
File
Date:
|
5/18/06
|
|||
|
Secured
Party:
|
HSBC
Business Credit (USA) Inc.
|
|||
