EXHIBIT 10.86
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SECURITY AGREEMENT
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THIS SECURITY AGREEMENT ("Agreement") is made as of the 29th day of
November 1999, by and between GENERIC DISTRIBUTORS, INCORPORATED, a Delaware
corporation ("Guarantor"), and FINOVA MEZZANINE CAPITAL INC., Tennessee
corporation formerly known as SIRROM CAPITAL CORPORATION, for itself and in its
capacity as Collateral Agent pursuant to that Collateral Agent Agreement dated
June 18, 1997, (the "Agency Agreement") by and between FMC and Argosy Investment
Partners, L.P., a Pennsylvania limited partnership ("Argosy") (FMC and Argosy
are collectively referred to herein as "Creditor").
RECITALS:
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WHEREAS, FMC and Argosy have extended credit to DynaGen, Inc., a
Delaware corporation ("Parent"), and Guarantor has guaranteed the obligations of
Parent pursuant to a Guaranty Agreement of even date herewith executed by
Guarantor (the "Guaranty"); and
WHEREAS, in connection with the amendment of the Loan, FMC desires to
obtain from Guarantor and Guarantor desires to grant to FMC a security interest
in certain collateral more particularly described below.
AGREEMENT:
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NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Security Interest. Guarantor hereby grants to FMC, as agent
for itself and Argosy, a security interest in the following described
property (collectively, the "Collateral"):
(a) presently existing and hereafter arising accounts, contract
rights, and all other forms of obligations owing to Guarantor arising
out of the sale or lease of goods or the rendition of services by
Guarantor, whether or not earned by performance, and any and all credit
insurance, guaranties, and other security therefor, as well as all
merchandise returned to or reclaimed by Guarantor and Guarantor's Books
relating to any of the foregoing (collectively, "Accounts");
(b) present and future general intangibles and other personal
property (including choses or things in action, goodwill, patents,
trade names, trademarks, servicemarks, copyrights, blueprints,
drawings, purchase orders, customer lists, monies due or recoverable
from pension funds, route lists, monies due under any royalty or
licensing agreements, infringement claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs deposit accounts,
insurance premium rebates, tax refunds, and tax refund claims) other
than goods and Accounts, and Guarantor's Books relating to any of the
foregoing (collectively, "General Intangibles");
(c) present and future letters of credit, notes, drafts,
instruments, certificated and uncertificated securities, documents,
leases, and chattel paper, and Guarantor's Books relating to any of the
foregoing (collectively, "Negotiable Collateral");
(d) present and future inventory in which Guarantor has any
interest, including goods held for sale or lease or to be furnished
under a contract of service and all of Guarantor's present and future
raw materials, work in process, finished goods, and packing and
shipping materials, wherever located, and any documents of title
representing any of the above, and Guarantor's Books relating to any of
the foregoing (collectively, "Inventory");
(e) present and hereafter acquired machinery, machine tools,
motors, equipment, furniture, furnishings, fixtures, vehicles
(including motor vehicles and trailers), tools, parts, dies, jigs,
goods (other than consumer goods or farm products), and any interest in
any of the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions, and improvements to any of the
foregoing, wherever located (collectively, "Equipment");
(f) books and records including: ledgers; records indicating,
summarizing, or evidencing Guarantor's assets or liabilities, or the
collateral; all information relating to Guarantor's business operations
or financial condition; and all computer programs, disc or tape files,
printouts, funds or other computer prepared information, and the
equipment containing such information (collectively, "Guarantor's
Books");
(g) substitutions, replacements, additions, accessions, proceeds,
products to or of any of the foregoing, including, but not limited to,
proceeds of insurance covering any of the foregoing, or any portion
thereof, and any and all Accounts, General Intangibles, Negotiables,
Collateral, Inventory, Equipment, money, deposits, accounts, or other
tangible or intangible property resulting from the sale or other
disposition of the accounts, general Intangibles, Negotiable
Collateral, Inventory, Equipment, or any portion thereof or interest
therein and the proceeds thereof.
2. Secured Indebtedness. The security interest granted hereby shall secure
the payment of the Obligations (as defined in the Guaranty) and the
prompt performance of each of the covenants and duties under the Loan
Documents (as defined in the "Loan Agreement," as defined in the
Guaranty).
3. Representations and Warranties of Guarantor. Guarantor represents,
warrants and agrees as follows:
(a) Except as set forth on Schedule 3(a) hereto (the "Permitted
Encumbrances"), Guarantor is the owner of the Collateral free and
clear of any liens and security interests. Guarantor will defend
the Collateral against the claims and demands of all persons other
than the holders of the Permitted Encumbrances.
(b) The address set forth on Schedule 3(b) hereto is Guarantor's
principal places of business and the location(s) of all tangible
Collateral and the place(s) where the records concerning all
intangible Collateral are kept and/or maintained.
(c) Guarantor will pay all costs of filing of financing,
continuation and termination statements with respect to the
security interests created hereby, and FMC is authorized to do all
things that it deems necessary to perfect and continue perfection
of the security interests created hereby and to protect the
Collateral.
4. Agreements With Respect to the Collateral. Guarantor covenants and
agrees with FMC as follows:
(a) Guarantor will not permit any of the Collateral to be removed
from the location specified herein, except for temporary periods in
the normal and customary use thereof, without the prior written
consent of FMC.
(b) Guarantor shall notify FMC in writing of any change in the
location of Guarantor's principal place of business (or residence)
or the location of any tangible Collateral or the place(s) where
the records concerning all intangible Collateral are kept or
maintaine
(c) Guarantor will keep the Collateral in good condition and repair
and will pay and discharge all taxes, levies and other impositions
levied thereon as well as the cost of repairs to or maintenance of
same, and will not permit anything to be done that may impair the
value of any of the Collateral. If Guarantor fails to pay such
sums, FMC may do so for Guarantor's account and add the amount
thereof to the Obligations.
(d) Until the occurrence of an Event of Default, Guarantor shall be
entitled to possession of the Collateral and to use the same in any
lawful manner, provided that such use does not cause excessive wear
and tear to the Collateral, cause it to decline in value at an
excessive rate, or violate the terms of any policy of insurance
thereon.
(e) Guarantor will not sell, exchange, lease or otherwise dispose
of any of the Collateral or any interest therein without the prior
written consent of FMC. Notwithstanding the foregoing, so long as
an Event of Default has not occurred, Guarantor shall have the
right to process and sell Guarantor's inventory in the regular
course of business. FMC's security interest hereunder shall attach
to all proceeds of all sales or other dispositions of the
Collateral. If at any time any such proceeds shall be represented
by any instruments, chattel paper or documents of title, then such
instruments, chattel paper or documents of title shall be promptly
delivered to FMC and subject to the security interest granted
hereby. If at any time any of Guarantor's inventory is represented
by any document of title, such document of title will be delivered
promptly to FMC and subject to the security interest granted
hereby.
(f) Guarantor will not allow the Collateral to be attached to real
estate in such manner as to become a fixture or a part of any real
estate.
(g) Guarantor will at all times keep the Collateral insured against
all insurable hazards in amounts equal to the full cash value of
the Collateral. Such insurance shall be in such companies as may be
acceptable to FMC, with provisions satisfactory to FMC for payment
of all losses thereunder to FMC as its interests may appear. If
required by FMC, Guarantor shall deposit the policies with FMC
unless the possession of such policy is required by a senior
lender, in which case Guarantor shall deposit the policy with the
senior lender. If an Event of Default (as defined in the Loan
Agreement) has occurred and is continuing, any money received by
FMC under said policies may be applied to the payment of the
Obligations, whether or not due and payable, or at FMC's option may
be delivered by FMC to Guarantor for the purpose of repairing or
restoring the Collateral. Guarantor assigns to FMC all right to
receive proceeds of insurance not exceeding the amounts secured
hereby, directs any insurer to pay all proceeds directly to FMC,
and appoints FMC Guarantor's attorney-in-fact to endorse any draft
or check made payable to Guarantor in order to collect the benefits
of such insurance. If Guarantor fails to keep the Collateral
insured as
required by FMC, FMC shall have the right to obtain such insurance
at Guarantor's expense and add the cost thereof to the Obligations.
(h) Guarantor will not permit any liens or security interests other
than those created by this Agreement and the Permitted Encumbrances
to attach to any of the Collateral, nor permit any of the
Collateral to be levied upon under any legal process, nor permit
anything to be done that may impair the security intended to be
afforded by this Agreement, nor permit any tangible Collateral to
become attached to or commingled with other goods without the prior
written consent of FMC.
5. Remedies Upon Default. Upon an Event of Default under and as defined in
the Loan Agreement, FMC may pursue any or all of the following
remedies, without any notice to Guarantor except as required below:
(a) FMC may give written notice of default to Guarantor, following
which Guarantor shall not dispose of, conceal, transfer, sell or
encumber any of the Collateral (including, but not limited to, cash
proceeds) without FMC's prior written consent, even if such
disposition is otherwise permitted hereunder in the ordinary course
of business. Any such disposition, concealment, transfer or sale
after the giving of such notice shall constitute a wrongful
conversion of the Collateral. FMC may obtain a temporary
restraining order or other equitable relief to enforce Guarantor's
obligation to refrain from so impairing FMC's Collateral.
(b) FMC may take possession of any or all of the Collateral.
Guarantor hereby consents to FMC's entry into any of Guarantor's
premises to repossess Collateral, and specifically consents to
FMC's forcible entry thereto as long as FMC causes no significant
damage to the Premises in the process of entry (xxxxxxxx of locks,
cutting of chains and the like do not in themselves cause
"significant" damage for the purposes hereof) and provided that FMC
accomplishes such entry without a breach of the peace.
(c) FMC may dispose of the Collateral at private or public sale.
Any required notice of sale shall be deemed commercially reasonable
if given at least five (5) days prior to sale. FMC may adjourn any
public or private sale to a different time or place without notice
or publication of such adjournment, and may adjourn any sale either
before or after offers are received. The Collateral may be sold in
such lots as FMC may elect, in its sole discretion. FMC may take
such action as it may deem necessary to repair, protect, or
maintain the Collateral pending its disposition.
(d) FMC may recover any or all proceeds of accounts from any bank
or other custodian who may have possession thereof. Guarantor
hereby authorizes and directs all custodians of Guarantor's assets
to comply with any demand for payment made by FMC pursuant to this
Agreement, without the need of confirmation from Guarantor and
without making any inquiry as to the existence of an Event of
Default or any other matter. FMC may engage a collection agent to
collect accounts for a reasonable percentage commission or for any
other reasonable compensation arrangement.
(e) FMC may notify any or all account debtors that subsequent
payments must be made directly to FMC or its designated agent. Such
notice may be made over FMC's signature or over Guarantor's name
with no signature or both, in FMC's discretion. Guarantor hereby
authorizes and directs all existing or future account debtors to
comply with any such notice given by FMC, without the need of
confirmation from Guarantor and without making any inquiry as to
the existence of an Event of Default or as to any other matter.
(f) FMC may, but shall not be obligated to, take such measures as
FMC may deem necessary in order to collect any or all of the
accounts. Without limiting the foregoing, FMC may institute any
administrative or judicial action that it may deem necessary in the
course of collecting and enforcing any or all of the accounts. Any
administrative or judicial action or other action taken by FMC in
the course of collecting the accounts may be taken by FMC in its
own name or in Guarantor's name. FMC may compromise any disputed
claims and may otherwise enter into settlements with account
debtors or obligors under the accounts, which compromises or
settlements shall be binding upon Guarantor. FMC shall have no duty
to pursue collection of any account, and may abandon efforts to
collect any account after such efforts are initiated.
(g) FMC may, with respect to any account involving uncompleted
performance by Guarantor, and with respect to any general
intangible or other Collateral whose value may be preserved by
additional performance on Guarantor's part, take such action as FMC
may deem appropriate including, but not limited, to performing or
causing the performance of any obligation of Guarantor thereunder,
the making of payments to prevent defaults thereunder, and the
granting of adequate assurances to other parties thereto with
respect to future performance. FMC's action with respect to any
such accounts or general intangibles shall not render FMC liable
for further performance thereunder unless FMC so agrees in writing.
(h) FMC may exercise its lien upon and right of setoff against any
monies, items, credits, deposits or instruments that FMC may have
in its possession and that belong to Guarantor or to any other
person or entity liable for the payment of any or all of the
Obligations.
(i) FMC may exercise any right that it may have under any other
document evidencing or securing the Obligations or otherwise
available to FMC at law or equity.
6. Audits and Examinations. FMC shall have the right, at any time, by its
own auditors, accountants or other agents, to examine or audit any of
the books and records of Guarantor, or the Collateral, all of which
will be made available upon request. Such accountants or other
representatives of FMC will be permitted to make any verification of
the existence of the Collateral or accuracy of the records that FMC
deems necessary or proper. Any reasonable expenses incurred by FMC in
making such examination, inspection, verification or audit shall be
paid by Guarantor promptly on demand and shall constitute part of the
Obligations.
7. Termination Statement. Upon receipt of proper written demand following
the payment in full of the Obligations and termination of any
commitment of FMC to make any future advances to Guarantor, FMC at its
option, shall send a termination statement with respect to any
financing statement filed to perfect Creditor's security interests in
any of the Collateral to Guarantor, or cause such termination statement
to be filed with the appropriate filing officer(s).
8. Power of Attorney. Guarantor hereby constitutes FMC or its designee, as
Guarantor's attorney-in-fact with power, upon the occurrence and during
the continuance of an Event of Default, to endorse Guarantor's name
upon any notes, acceptances, checks, drafts, money orders, or other
evidences of payment or Collateral that may come into either its or
FMC's possession; to sign the name of Guarantor on any invoice or xxxx
of lading relating to any of the accounts receivable, drafts against
customers, assignments and verifications of accounts receivable and
notices to customers; to send verifications of accounts receivable; to
notify the Post Office authorities to change the address for delivery
of mail addressed to Guarantor to such address as FMC may designate; to
execute any of the documents referred to in Section 3(c) hereof in
order to perfect and/or maintain the security interests and liens
granted herein by Guarantor to FMC; to do all other acts and things
necessary to carry out the purposes of and remedies provided under this
Agreement. All acts of said attorney or designee are hereby ratified
and approved, and said attorney or designee shall not be liable for any
acts of commission or omission (other than acts of gross negligence or
willful misconduct), nor for any error of judgment or mistake of fact
or law. This power being coupled with an interest is irrevocable until
all of the Obligations are paid in full and any and all promissory
notes executed in connection therewith are terminated and satisfied.
9. Binding Effect. This Agreement shall inure to the benefit of FMC's
successors and assigns and shall bind Guarantor's heirs,
representatives, successors and assigns.
10. Severability. If any provision of this Agreement is held invalid, such
invalidity shall not affect the validity or enforceability of the
remaining provisions of this Agreement.
11. Governing Law and Amendments. This Agreement shall be construed and
enforced under the laws of the State of Tennessee applicable to
contracts to be wholly performed in such State. No amendment or
modification hereof shall be effective except in a writing executed by
each of the parties hereto.
12. Survival of Representations and Warranties. All representations and
warranties contained herein or made by or furnished on behalf of
Guarantor in connection herewith shall survive the execution and
delivery of this Agreement.
13. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties to this Agreement in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same Agreement.
14. Construction and Interpretation. Should any provision of this Agreement
require judicial interpretation, the parties hereto agree that the
court interpreting or construing the same shall not apply a presumption
that the terms hereof shall be more strictly construed against one
party by reason of the rule of construction that a document is to be
more strictly construed against the party that itself or through its
agent prepared the same; it being agreed that Guarantor, FMC and their
respective agents have participated in the preparation hereof.
15. Consent to Jurisdiction; Exclusive Venue. Guarantor hereby irrevocably
consents to the Jurisdiction of the United States District Court for
the Middle District of Tennessee and of all Tennessee state courts
sitting in Davidson County, Tennessee, for the purpose of any
litigation to which FMC may be a party and which concerns this
Agreement or the Obligations. It is further agreed that venue for any
such action shall lie exclusively with courts sitting in Davidson
County, Tennessee, unless FMC agrees to the contrary in writing.
16. Waiver of Trial by Jury. CREDITOR AND GUARANTOR HEREBY KNOWINGLY AND
VOLUNTARILY WITH THE BENEFIT OF COUNSEL WAIVE TRIAL BY JURY IN ANY
ACTIONS, PROCEEDINGS, CLAIMS OR COUNTER-CLAIMS, WHETHER IN CONTRACT OR
TORT OR OTHERWISE, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY
RELATING TO THIS AGREEMENT OR THE LOAN DOCUMENTS.
IN WITNESS WHEREOF, Guarantor and FMC have executed this Agreement, or
have caused this Agreement to be executed as of the date first above written.
GUARANTOR:
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GENERIC DISTRIBUTORS, INCORPORATED,
a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxxx
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Title: Secretary
AGENT:
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FINOVA MEZZANINE CAPITAL INC.,
a Tennessee corporation
By: /s/ Xxx XxXxxxxx
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Title: Vice President
