SECURITY AGREEMENT EXHIBIT 10.5
THIS SECURITY AGREEMENT, dated as of December 3, 1997, is made and
given by XXXXXX MANUFACTURING, INC., a Minnesota corporation (the "Grantor"), to
U.S. BANK NATIONAL ASSOCIATION, a national banking association (the "Secured
Party").
RECITALS
A. The Grantor and the Secured Party have entered into a Financing
Agreement dated as of December 3, 1997 (as the same may hereafter be amended,
supplemented, extended, restated, or otherwise modified from time to time, the
"Financing Agreement") pursuant to which the Secured Party has agreed to extend
to the Grantor certain credit accommodations on the terms and conditions set
forth in the Financing Agreement.
B. The Grantor has executed and delivered three promissory notes
dated as of December 3, 1997 (as the same may hereafter be amended,
supplemented, extended, restated, or otherwise modified from time to time, the
"Promissory Notes") in the original amounts of $1,000,000; $270,000; and
$2,400,000 pursuant to which the Secured Party has agreed to extend to the
Grantor certain credit accommodations on the terms and conditions set forth in
the Promissory Notes.
C. It is a condition precedent to the extension of any credit
accommodations pursuant to the terms of the Financing Agreement and the
Promissory Notes that this Agreement be executed and delivered by the Grantor.
D. The Grantor finds it advantageous, desirable and in its best
interests to comply with the requirement that it execute and deliver this
Security Agreement to the Secured Party.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Secured Party to enter into the Financing Agreement and to extend
credit accommodations to the Grantor thereunder, the Grantor hereby agrees with
the Secured Party for the Secured Party's benefit as follows:
Section 1. DEFINED TERMS.
1(a) As used in this Agreement, the following terms shall have
the meanings indicated:
"ACCOUNTS" shall mean each and every right to payment of Grantor,
whether such right to payment arises out of a sale or lease of goods by
Grantor, or other disposition of goods or other property of Grantor, out of
a rendering of services by Grantor, out of a loan by Grantor, out of damage
to or loss of goods in the possession of a railroad or other carrier or any
other bailee, out of overpayment of taxes or other liabilities of Grantor,
or which otherwise arises under any contract or agreement, or from any
other cause, whether such right to payment now exists or hereafter arises
and whether such right to payment is or is not yet earned by performance
and howsoever such right to payment may be evidenced, together with all
other rights and interest (including all liens and security interests)
which Grantor may at any time have by law or agreement against any account
debtor (as defined in the Uniform Commercial Code in effect in the State of
Minnesota) or other obligor obligated to make any such payment or against
any of the property of such account debtor or other obligor; specifically
(but without limitation), the term includes all present and future
instruments, documents, chattel papers, accounts and contract rights of
Grantor.
"ACCOUNT DEBTOR" shall mean a Person who is obligated on or under any
Account, Chattel Paper, Instrument or General Intangible.
"CHATTEL PAPER" shall mean a writing or writings which evidence both a
monetary obligation and a security interest in or lease of specific goods;
when a transaction is evidenced by both a security agreement or a lease and
by an Instrument or a series of Instruments, the group of writings taken
together constitutes Chattel Paper.
"COLLATERAL" shall mean all property and rights in property now owned
or hereafter at any time acquired by the Grantor in or upon which a
Security Interest is granted to the Secured Party by the Grantor under this
Agreement.
"DOCUMENT" shall mean any xxxx of lading, dock warrant, dock receipt,
warehouse receipt or order for the delivery of goods, together with any
other document or receipt which in the regular course of business or
financing is treated as adequately evidencing that the Person in possession
of it is entitled to receive, hold and dispose of the document and the
goods it covers.
"EQUIPMENT" shall mean all machinery, equipment, furniture,
furnishings and fixtures, including all accessions, accessories and
attachments thereto, and any guaranties, warranties, indemnities and other
agreements of manufacturers, vendors and others with respect to such
Equipment.
"EVENT OF DEFAULT" shall have the meaning given to such term in
Section 20 hereof.
"FINANCING STATEMENT" shall have the meaning given to such term in
Section 4 hereof.
"GENERAL INTANGIBLES" shall mean any personal property (other than
goods, Accounts, Chattel Paper, Documents, Instruments and money) including
choses in action, causes of action, contract rights, corporate and other
business records, inventions, designs, patents, patent applications,
service marks, trademarks, tradenames, trade secrets, engineering drawings,
good will, registrations, copyrights, licenses, franchises, customer lists,
tax refund claims, royalties, licensing and product rights, rights to the
retrieval from third parties of electronically processed and recorded data
and all rights to payment resulting from an order of any court.
"INSTRUMENT" shall mean a draft, check, certificate of deposit, note,
xxxx of exchange, security or any other writing which evidences a right to
the payment of money and is not itself a security agreement or lease and is
of a type which is transferred in the ordinary course of business by
delivery with any necessary endorsement or assignment.
"INVENTORY" shall mean any and all of the Grantor's goods, including,
without limitation, goods in transit, wherever located which are or may at
any time be leased by the Grantor to a lessee, held for sale or lease,
furnished under any contract of service or held as raw materials, work in
process, or supplies or materials used or consumed in the Grantor's
business, or which are held for use in connection with the manufacture,
packing, shipping, advertising, selling or finishing of such goods, and all
goods, the sale or other disposition of which has given rise to a
Receivable, which are returned to and/or repossessed and/or stopped in
transit by the Grantor or the Secured Party, or at any time hereafter in
the
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possession or under the control of the Grantor or the Secured Party, or any
agent or bailee of either thereof, and all documents of title or other documents
representing the same.
"LIEN" shall mean any security interest, mortgage, pledge, lien,
charge, encumbrance, title retention agreement or analogous instrument or
device (including the interest of the lessors under capitalized leases),
in, of or on any assets or properties of the Person referred to.
"OBLIGATIONS" shall mean (a) all indebtedness, liabilities and
obligations of the Grantor to the Secured Party of every kind, nature or
description under the Financing Agreement or under the Promissory Notes,
including the Grantor's obligation on any promissory note or notes under
the Financing Agreement and any note or notes hereafter issued in
substitution or replacement thereof, (b) all liabilities of the Grantor
under this Agreement, and (c) any and all other liabilities and obligations
of the Grantor to the Secured Party of every kind, nature and description,
whether direct or indirect or hereafter acquired by the Secured Party from
any Person, absolute or contingent, regardless of how such liabilities
arise or by what agreement or instrument they may be evidenced, and in all
of the foregoing cases whether due or to become due, and whether now
existing or hereafter arising or incurred.
"PERSON" shall mean any individual, corporation, partnership, limited
partnership, limited liability company, joint venture, firm, association,
trust, unincorporated organization, government or governmental agency or
political subdivision or any other entity, whether acting in an individual,
fiduciary or other capacity.
"SECURITY INTEREST" shall have the meaning given such term in Section
2 hereof.
1(b) All other terms used in this Agreement which are not
specifically defined herein shall have the meaning assigned to such terms
in the Uniform Commercial Code in effect in the State of Minnesota as of
the date of this Agreement to the extent such other terms are defined
therein.
1(c) Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, the singular, the
plural and "or" has the inclusive meaning represented by the phrase
"and/or." The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation." The words "hereof,"
"herein," "hereunder," and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this Agreement.
References to Sections are references to Sections in this Security
Agreement unless otherwise provided.
Section 2. GRANT OF SECURITY INTEREST. As security for the payment
and performance of all of the Obligations, the Grantor hereby grants to the
Secured Party a security interest (the "Security Interest") in all of the
Grantor's right, title, and interest in and to the following, whether now or
hereafter owned, existing, arising or acquired and wherever located:
2(a) All Accounts.
2(b) All Chattel Paper.
2(c) All Documents.
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2(d) All Equipment.
2(e) All General Intangibles.
2(f) All Instruments.
2(g) All Inventory.
2(h) To the extent not otherwise included in the foregoing, (i)
all other rights to the payment of money, including rents and other sums
payable to the Grantor under leases, rental agreements and other Chattel
Paper and insurance proceeds; (ii) all books, correspondence, credit files,
records, invoices, bills of lading, and other documents relating to any of
the foregoing, including, without limitation, all tapes, cards, disks,
computer software, computer runs, and other papers and documents in the
possession or control of the Grantor or any computer bureau from time to
time acting for the Grantor; (iii) all rights in, to and under all policies
insuring the life of any officer, director, stockholder or employee of the
Grantor, the proceeds of which are payable to the Grantor; and (iv) all
accessions and additions to, parts and appurtenances of, substitutions for
and replacements of any of the foregoing.
2(i) To the extent not otherwise included, all proceeds and
products of any and all of the foregoing.
Section 3. GRANTOR REMAINS LIABLE. Anything herein to the contrary
notwithstanding, (a) the Grantor shall remain liable under the Accounts, Chattel
Paper, General Intangibles and other items included in the Collateral to the
extent set forth therein to perform all of its duties and obligations thereunder
to the same extent as if this Agreement had not been executed, (b) the exercise
by the Secured Party of any of the rights hereunder shall not release the
Grantor from any of its duties or obligations under any items included in the
Collateral, and (c) the Secured Party shall have no obligation or liability
under Accounts, Chattel Paper, General Intangibles and other items included in
the Collateral by reason of this Agreement, nor shall the Secured Party be
obligated to perform any of the obligations or duties of the Grantor thereunder
or to take any action to collect or enforce any claim for payment assigned
hereunder.
Section 4. TITLE TO COLLATERAL. Except as otherwise permitted herein
or in the Financing Agreement, the Grantor has (or will have at the time it
acquires rights in Collateral hereafter acquired or arising) and will maintain
so long as the Security Interest may remain outstanding, title to each item of
Collateral (including the proceeds and products thereof), free and clear of all
Liens except the Security Interest and except Liens permitted by the Financing
Agreement. Except as otherwise permitted herein or in the Financing Agreement,
the Grantor will defend the Collateral against all claims or demands of all
Persons (other than the Secured Party) claiming the Collateral or any interest
therein. As of the date of execution of this Security Agreement, no effective
financing statement or other similar document used to perfect and preserve a
security interest under the laws of any jurisdiction (a "Financing Statement")
covering all or any part of the Collateral is on file in any recording office,
except such as may have been filed (a) in favor of the Secured Party relating to
this Agreement, or (b) to perfect Liens permitted by the Financing Agreement.
Section 5. LOCK BOX, COLLATERAL ACCOUNT. The Grantor will direct
each of its Account Debtors or other obligors to make payments due under any
Collateral directly to a special lock box to be established and maintained by
Secured Party (the "Lockbox"). The Grantor hereby
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authorizes and directs Secured Party to deposit into a special collateral
account to be established and maintained by Secured Party (the "Collateral
Account") all checks, drafts and cash payments received in said Lockbox. All
deposits from the Lockbox to the Collateral Account shall constitute proceeds of
Collateral and shall not constitute payment of any Obligation. The Grantor
agrees that it will promptly deliver to Secured Party, for deposit into said
Collateral Account, all payments on Accounts and Chattel Paper received by it.
All such payments shall be delivered to Secured Party in the form received
(except for the Grantor's endorsement where necessary). Until so delivered, all
payments on Accounts and Chattel Paper received by the Grantor shall be held in
trust by the Grantor for and as the property of Secured Party and shall not be
commingled with any funds or property of the Grantor.
Section 6. COLLECTION RIGHTS OF SECURED PARTY. Notwithstanding
Secured Party's rights under Section 5 with respect to any and all Instruments,
Chattel Paper, Accounts and other rights to payment constituting Collateral
(including proceeds), Secured Party may, at any time (after the occurrence of an
Event of Default or demand for payment under the Financing Agreement) notify any
Account Debtor, or any other person obligated to pay any amount due, that such
Chattel Paper, Account, or other right to payment has been assigned or
transferred to Secured Party for security and shall be paid directly to Secured
Party. If Secured Party so requests at any time, the Grantor will so notify
such Account Debtors and other obligors in writing and will indicate on all
invoices to such Account Debtors or other obligors that the amount due is
payable directly to Secured Party. At any time after Secured Party or the
Grantor gives such notice to an account debtor or other obligor, Secured Party
may (but need not), in its own name or in the Grantor's name, demand, xxx for,
collect or receive any money or property at any time payable or receivable on
account of, or securing, any such chattel paper, account, or other right to
payment, or grant any extension to, make any compromise or settlement with or
otherwise agree to waive, notify, amend or change the obligations (including
collateral obligations) of any such account debtor or other obligor. The
Borrower hereby irrevocably makes, constitutes and appoints the Lender, or any
person whom the Lender may designate, the Borrower's true and lawful attorney
with power to receive, open and dispose of all mail addressed to the Borrower;
to endorse the Borrower's name on any notes, acceptances, checks, drafts, money
orders or other means of payment that may come into the Lender's possession as
payment of or upon Accounts, Chattel Paper or other Collateral; to endorse the
Borrower's name on any invoice, freight or express xxxx or xxxx of lading
relating to any Collateral; to sign the Borrower's name to drafts against
Account Debtors, to assignments and verification of accounts and notices thereof
to Account Debtors, and to documents of title covering any Collateral, and to do
all other things necessary or proper to carry out the intent of this Agreement.
Section 7. DISPOSITION OF COLLATERAL. The Grantor will not sell,
lease or otherwise dispose of, or discount or factor with or without recourse,
any Collateral, except sales of items of Inventory in the ordinary course of
business.
Section 8. NAMES, OFFICES, LOCATIONS. The Grantor does business
solely under its own name and the trade names and styles, if any, set forth on
Schedule II hereto. Except as noted on said Schedule, no such trade names or
styles and no trademarks or other similar marks owned by the Grantor are
registered with any governmental unit. The chief place of business and chief
executive office and the office where it keeps its books and records concerning
the Accounts and General Intangibles and the originals of all Chattel Paper,
Documents and Instruments are located at its address set forth on the signature
page hereof. All items of Equipment and Inventory existing on the date of this
Agreement are located at the places specified on Schedule I hereto. The Grantor
will immediately notify the Secured Party of any additional state in which any
item of Inventory or Equipment is hereafter located. The Grantor will from time
to time at the request of the Secured
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Party provide the Secured Party with current lists as to the locations of the
Equipment and Inventory. The Grantor will not permit any Inventory,
Equipment, Chattel Paper or Documents or any records pertaining to Accounts
and General Intangibles to be located in any state or area in which, in the
event of such location, a financing statement covering such Collateral would
be required to be, but has not in fact been, filed in order to perfect the
Security Interest. The Grantor will not change its name or the location of
its chief place of business and chief executive office unless the Secured
Party has been given at least 30 days prior written notice thereof and the
Grantor has executed and delivered to the Secured Party such Financing
Statements and other instruments required or appropriate to continue the
perfection of the Security Interest.
Section 9. RIGHTS TO PAYMENT. Except as the Grantor may otherwise
advise the Secured Party in writing, each Account, Chattel Paper, Document,
General Intangible and Instrument constituting or evidencing Collateral is (or,
in the case of all future Collateral, will be when arising or issued) the valid,
genuine and legally enforceable obligation of the Account Debtor or other
obligor named therein or in the Grantor's records pertaining thereto as being
obligated to pay or perform such obligation. The Grantor will perform and
comply in all material respects with all its obligations under any items
included in the Collateral and exercise promptly and diligently its rights
thereunder.
Section 10. FURTHER ASSURANCES.
10(a) The Grantor agrees that from time to time, at its expense,
it will promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary or that the Secured
Party may reasonably request, in order to perfect and protect the Security
Interest granted or purported to be granted hereby or to enable the Secured
Party to exercise and enforce its rights and remedies hereunder with
respect to any Collateral (but any failure to request or assure that the
Grantor execute and deliver such instrument or documents or to take such
action shall not affect or impair the validity, sufficiency or
enforceability of this Agreement and the Security Interest, regardless of
whether any such item was or was not executed and delivered or action taken
in a similar context or on a prior occasion). Without limiting the
generality of the foregoing, the Grantor will, promptly and from time to
time at the request of the Secured Party: (i) xxxx, or permit the Secured
Party to xxxx, conspicuously its books, records, and accounts showing or
dealing with the Collateral, and each item of Chattel Paper included in the
Collateral, with a legend, in form and substance satisfactory to the
Secured Party, indicating that each such item of Collateral and each such
item of Chattel Paper is subject to the Security Interest granted hereby;
(ii) deliver and pledge to the Secured Party, all Instruments and
Documents, duly indorsed or accompanied by duly executed instruments of
transfer or assignment, with full recourse to the Grantor, all in form and
substance satisfactory to the Secured Party; (iii) execute and file such
Financing Statements or continuation statements in respect thereof, or
amendments thereto, and such other instruments or notices (including
fixture filings with any necessary legal descriptions as to any goods
included in the Collateral which the Secured Party determines might be
deemed to be fixtures, and instruments and notices with respect to vehicle
titles), as may be necessary or desirable, or as the Secured Party may
request, in order to perfect, preserve, and enhance the Security Interest
granted or purported to be granted hereby; and (iv) obtain waivers, in form
satisfactory to the Secured Party, of any claim to any Collateral from any
landlords or mortgagees of any property where any Inventory or Equipment is
located.
10(b) The Grantor hereby authorizes the Secured Party to file
one or more Financing Statements or continuation statements in respect
thereof, and amendments
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thereto, relating to all or any part of the Collateral without the
signature of the Grantor where permitted by law. A photocopy or other
reproduction of this Agreement or any Financing Statement covering the
Collateral or any part thereof shall be sufficient as a Financing Statement
where permitted by law.
10(c) The Grantor will furnish to the Secured Party from time to
time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Secured Party may reasonably request, all in reasonable detail and in form
and substance reasonably satisfactory to the Secured Party.
Section 11. TAXES AND CLAIMS. The Grantor will promptly pay all
taxes and other governmental charges levied or assessed upon or against any
Collateral or upon or against the creation, perfection or continuance of the
Security Interest, as well as all other claims of any kind (including claims for
labor, material and supplies) against or with respect to the Collateral, except
to the extent (a) such taxes, charges or claims are being contested in good
faith by appropriate proceedings, (b) such proceedings do not involve any
material danger of the sale, forfeiture or loss of any of the Collateral or any
interest therein and (c) such taxes, charges or claims are adequately reserved
against on the Grantor's books in accordance with generally accepted accounting
principles.
Section 12. BOOKS AND RECORDS. The Grantor will keep and maintain at
its own cost and expense satisfactory and complete records of the Collateral,
including a record of all payments received and credits granted with respect to
all Accounts, Chattel Paper and other items included in the Collateral.
Section 13. INSPECTION, REPORTS, VERIFICATIONS. The Grantor will at
all reasonable times permit the Secured Party or its representatives to examine
or inspect any Collateral, any evidence of Collateral and the Grantor's books
and records concerning the Collateral, wherever located. The Grantor will from
time to time when requested by the Secured Party furnish to the Secured Party a
report on its Accounts, Chattel Paper, General Intangibles and Instruments,
naming the Account Debtors or other obligors thereon, the amount due and the
aging thereof. The Secured Party or its designee is authorized to contact
Account Debtors and other Persons obligated on any such Collateral from time to
time to verify the existence, amount and/or terms of such Collateral.
Section 14. NOTICE OF LOSS. The Grantor will promptly notify the
Secured Party of any loss of or material damage to any material item of
Collateral or of any substantial adverse change, known to Grantor, in any
material item of Collateral or the prospect of payment or performance thereof.
Section 15. INSURANCE. The Grantor will keep the Equipment and
Inventory insured against "all risks" for the full replacement cost thereof
subject to a deductible in an amount, and with an insurance company or
companies, satisfactory to the Secured Party, the policies to protect the
Secured Party as its interests may appear, with such policies or certificates
with respect thereto to be delivered to the Secured Party at its request. Each
such policy or the certificate with respect thereto shall provide that such
policy shall not be cancelled or allowed to lapse unless at least 30 days prior
written notice is given to the Secured Party.
Section 16. LAWFUL USE; FAIR LABOR STANDARDS ACT. The Grantor will
use and keep the Collateral, and will require that others use and keep the
Collateral, only for lawful purposes, without violation of any federal, state or
local law, statute or ordinance. All Inventory of the
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Grantor as of the date of this Agreement that was produced by the Grantor or
with respect to which the Grantor performed any manufacturing or assembly
process was produced by the Grantor (or such manufacturing or assembly process
was conducted) in compliance in all material respects with all requirements of
the Fair Labor Standards Act, and all Inventory produced, manufactured or
assembled by the Grantor after the date of this Agreement will be so produced,
manufactured or assembled, as the case may be.
Section 17. ACTION BY THE SECURED PARTY. If the Grantor at any time
fails to perform or observe any of the foregoing agreements, the Secured Party
shall have (and the Grantor hereby grants to the Secured Party) the right, power
and authority (but not the duty) to perform or observe such agreement on behalf
and in the name, place and stead of the Grantor (or, at the Secured Party's
option, in the Secured Party's name) and to take any and all other actions which
the Secured Party may reasonably deem necessary to cure or correct such failure
(including, without limitation, the payment of taxes, the satisfaction of Liens,
the procurement and maintenance of insurance, the execution of assignments,
security agreements and Financing Statements, and the indorsement of
instruments); and the Grantor shall thereupon pay to the Secured Party on demand
the amount of all monies expended and all costs and expenses (including
reasonable attorneys' fees and legal expenses) incurred by the Secured Party in
connection with or as a result of the performance or observance of such
agreements or the taking of such action by the Secured Party, together with
interest thereon from the date expended or incurred at the highest lawful rate
then applicable to any of the Obligations, and all such monies expended, costs
and expenses and interest thereon shall be part of the Obligations secured by
the Security Interest.
Section 18. INSURANCE CLAIMS. As additional security for the payment
and performance of the Obligations, the Grantor hereby assigns to the Secured
Party any and all monies (including proceeds of insurance and refunds of
unearned premiums) due or to become due under, and all other rights of the
Grantor with respect to, any and all policies of insurance now or at any time
hereafter covering the Collateral or any evidence thereof or any business
records or valuable papers pertaining thereto. At any time, whether before or
after the occurrence of any Event of Default, the Secured Party may (but need
not), in the Secured Party's name or in Grantor's name, execute and deliver
proofs of claim, receive all such monies, indorse checks and other instruments
representing payment of such monies, and adjust, litigate, compromise or release
any claim against the issuer of any such policy. Notwithstanding any of the
foregoing, so long as no Event of Default exists the Grantor shall be entitled
to all insurance proceeds with respect to Equipment or Inventory provided that
such proceeds are applied to the cost of replacement Equipment or Inventory.
Section 19. THE SECURED PARTY'S DUTIES. The powers conferred on the
Secured Party hereunder are solely to protect its interest in the Collateral and
shall not impose any duty upon it to exercise any such powers. The Secured
Party shall be deemed to have exercised reasonable care in the safekeeping of
any Collateral in its possession if such Collateral is accorded treatment
substantially equal to the safekeeping which the Secured Party accords its own
property of like kind. Except for the safekeeping of any Collateral in its
possession and the accounting for monies and for other properties actually
received by it hereunder, the Secured Party shall have no duty, as to any
Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not the Secured Party has or is deemed to have knowledge
of such matters, or as to the taking of any necessary steps to preserve rights
against any Persons or any other rights pertaining to any Collateral. The
Secured Party will take action in the nature of exchanges, conversions,
redemptions, tenders and the like requested in writing by the Grantor with
respect to the Collateral in the Secured Party's possession if the Secured Party
in its reasonable judgment determines that
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such action will not impair the Security Interest or the value of the
Collateral, but a failure of the Secured Party to comply with any such request
shall not of itself be deemed a failure to exercise reasonable care.
Section 20. EVENTS OF DEFAULT. The occurrence of any one or more of
the following events shall constitute an Event of Default under this Agreement:
20(a) The Grantor shall fail to make payment when due, whether
upon demand, or at a scheduled due date, or otherwise, any principal of or
interest on its obligations under the Financing Agreement or any other
obligations of the Grantor to the Secured Party, except to the extent any such
obligations expressly provide for a grace period prior to an event of default
thereunder.
20(b) Any representation or warranty made by or on behalf of the
Grantor in this Agreement or the Financing Agreement or by or on behalf of the
Grantor in any certificate, statement, report or document herewith or hereafter
furnished to the Secured Party pursuant to this Agreement or the Financing
Agreement shall prove to have been false or misleading in any material respect
on the date as of which the facts set forth are stated or certified.
20(c) The Grantor shall fail to comply with Sections 5.2 or 5.3
or any Section of Article VI of the Financing Agreement.
20(d) The Grantor shall fail to comply with any other agreement,
covenant, condition, provision or term contained in this Agreement or the
Financing Agreement (other than those hereinabove set forth in this Section 20)
and such failure to comply shall continue for 30 calendar days after whichever
of the following dates is the earliest: (i) the date the Grantor gives notice
of such failure to the Secured Party, or (ii) the date the Secured Party gives
notice of such failure to the Grantor.
20(e) The Grantor shall apply for or consent to, or shall
acquiesce in the appointment of a custodian, trustee or receiver of the Grantor
or for a substantial part of the property thereof or, in the absence of such
application, consent or acquiescence, a custodian, trustee or receiver shall be
appointed for the Grantor or for a substantial part of the property thereof and
shall not be discharged within 60 days, or the Grantor shall make an assignment
for the benefit of creditors.
20(f) Any bankruptcy, reorganization, debt arrangement or other
proceedings under any bankruptcy or insolvency law shall be instituted by or
against the Borrower and, if instituted against the Grantor, shall have been
consented to or acquiesced in by the Grantor or shall remain undismissed for 60
days, or an order for relief shall have been entered against the Grantor.
20(g) Any dissolution or liquidation proceeding shall be
instituted by or against the Grantor and, if instituted against the Grantor,
shall be consented to or acquiesced in by the Grantor or shall remain for 60
days undismissed.
20(h) A judgment or judgments for the payment of money in excess
of the sum of $75,000 in the aggregate shall be rendered against the Grantor and
either (i) the judgment creditor executes on such judgment or (ii) such judgment
remains unpaid or undischarged for more than 60 days from the date of entry
thereof or such longer period
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during which execution of such judgment shall be stayed during an appeal from
such judgment.
20(i) Any execution or attachment shall be issued whereby any
substantial part of the property of the Grantor shall be taken or attempted to
be taken and the same shall not have been vacated or stayed within 60 days after
the issuance thereof.
20(j) Any default or event of default shall occur with respect to
any of the Promissory Notes.
20(k) Any default or event of default shall occur and be
continuing under that Letter of Undertaking of even date herewith from the
Borrower to the Holder.
20(l) Any default or event of default shall occur with respect to
the Mortgage and Security Agreement, Assignment of Leases and Rents and Fixture
Financing Statement dated as even date from Grantor to Secured Party.
20(m) Any default or event of default (however denominated or
defined) shall occur with respect to any indebtedness of the Grantor (other than
the Obligations) permitted under the Financing Agreement.
THE FOREGOING EVENTS OF DEFAULT, AND THE REMEDIES UPON EVENT OF DEFAULT AS SET
FORTH BELOW IN SECTION 21, ARE IN ADDITION TO AND SUPPLEMENT THE RIGHTS OF THE
SECURED PARTY UNDER THE FINANCING AGREEMENT, INCLUDING WITHOUT LIMITATION THE
RIGHT OF THE SECURED PARTY TO DEMAND PAYMENT OF THE OBLIGATIONS UNDER THE
FINANCING AGREEMENT IN FULL AT ANY TIME IN ITS ABSOLUTE DISCRETION. NOTHING SET
FORTH IN THIS AGREEMENT (INCLUDING THE PROVISIONS OF THIS SECTION 20 OR THE
REMEDIES WITH RESPECT THERETO AS SET FORTH IN SECTION 21) SHALL IN ANY WAY LIMIT
THE SECURED PARTY'S DISCRETION TO MAKE OR NOT MAKE LOANS TO THE DEBTOR OR THE
SECURED PARTY'S RIGHT TO DEMAND PAYMENT OF THE OBLIGATIONS.
Section 21. REMEDIES ON DEFAULT. Upon the occurrence of an
Event of Default and at any time thereafter:
21(a) The Secured Party may exercise and enforce any and all
rights and remedies available upon default to a secured party under the Uniform
Commercial Code.
21(b) The Secured Party shall have the right to enter upon and
into and take possession of all or such part or parts of the properties of the
Grantor, including lands, plants, buildings, Equipment, Inventory and other
property as may be necessary or appropriate in the judgment of the Secured Party
to permit or enable the Secured Party to manufacture, produce, process, store or
sell or complete the manufacture, production, processing, storing or sale of all
or any part of the Collateral, as the Secured Party may elect, and to use and
operate said properties for said purposes and for such length of time as the
Secured Party may deem necessary or appropriate for said purposes without the
payment of any compensation to Grantor therefor. The Secured Party may require
the Grantor to, and the Grantor hereby agrees that it will, at its expense and
upon request of the
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Secured Party forthwith, assemble all or part of the Collateral as directed by
the Secured Party and make it available to the Secured Party at a place or
places to be designated by the Secured Party.
21(c) Any sale of Collateral may be in one or more parcels at
public or private sale, at any of the Secured Party's offices or elsewhere, for
cash, on credit, or for future delivery, and upon such other terms as the
Secured Party may reasonably believe are commercially reasonable. The Secured
Party shall not be obligated to make any sale of Collateral regardless of notice
of sale having been given, and the Secured Party may adjourn any public or
private sale from time to time by announcement made at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned.
21(d) The Secured Party is hereby granted a license or other
right to use, without charge, all of the Grantor's property, including, without
limitation, all of the Grantor's labels, trademarks, copyrights, patents and
advertising matter, or any property of a similar nature, as it pertains to the
Collateral, in completing production of, advertising for sale and selling any
Collateral, and the Grantor's rights under all licenses and all franchise
agreements shall inure to the Secured Party's benefit until the Obligations are
paid in full.
21(e) If notice to the Grantor of any intended disposition of
Collateral or any other intended action is required by law in a particular
instance, such notice shall be deemed commercially reasonable if given in the
manner specified for the giving of notice in Section 25 hereof at least ten
calendar days prior to the date of intended disposition or other action, and the
Secured Party may exercise or enforce any and all other rights or remedies
available by law or agreement against the Collateral, against the Grantor, or
against any other Person or property.
Section 22. APPLICATION OF PROCEEDS. All cash proceeds
received by the Secured Party in respect of any sale of, collection from, or
other realization upon all or any part of the Collateral may, in the discretion
of the Secured Party, be held by the Secured Party as collateral for, or then or
at any time thereafter be applied in whole or in part by the Secured Party
against, all or any part of the Obligations (including, without limitation, any
expenses of the Secured Party payable pursuant to Section 23 hereof).
Section 23. COSTS AND EXPENSES; INDEMNITY. The Grantor will pay
or reimburse the Secured Party on demand for all out-of-pocket expenses
(including in each case all filing and recording fees and taxes and all
reasonable fees and expenses of counsel and of any experts and agents) incurred
by the Secured Party in connection with the creation, perfection, protection,
satisfaction, foreclosure or enforcement of the Security Interest and the
preparation, administration, continuance, amendment or enforcement of this
Agreement, and all such costs and expenses shall be part of the Obligations
secured by the Security Interest. The Grantor shall indemnify and hold the
Secured Party harmless from and against any and all claims, losses and
liabilities (including reasonable attorneys' fees) growing out of or resulting
from this Agreement and the Security Interest hereby created (including
enforcement of this Agreement) or the Secured Party's actions pursuant hereto,
except claims, losses or liabilities resulting from the Secured Party's gross
negligence or willful misconduct as determined by a final judgment of a court of
competent jurisdiction. Any liability of the Grantor to indemnify and hold the
Secured Party harmless pursuant to the preceding sentence shall be part of the
Obligations secured by the Security Interest. The obligations of the Grantor
under this Section shall survive any termination of this Agreement.
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Section 24. WAIVERS; REMEDIES; MARSHALLING. This Agreement can
be waived, modified, amended, terminated or discharged, and the Security
Interest can be released, only explicitly in a writing signed by the Secured
Party. A waiver so signed shall be effective only in the specific instance and
for the specific purpose given. Mere delay or failure to act shall not preclude
the exercise or enforcement of any rights and remedies available to the Secured
Party. All rights and remedies of the Secured Party shall be cumulative and may
be exercised singly in any order or sequence, or concurrently, at the Secured
Party's option, and the exercise or enforcement of any such right or remedy
shall neither be a condition to nor bar the exercise or enforcement of any
other. The Grantor hereby waives all requirements of law, if any, relating to
the marshalling of assets which would be applicable in connection with the
enforcement by the Secured Party of its remedies hereunder, absent this waiver.
Section 25. NOTICES. Any notice or other communication to any
party in connection with this Agreement shall be in writing and shall be sent by
manual delivery, telegram, telex, facsimile transmission, overnight courier or
United States mail (postage prepaid) addressed to such party at the address
specified on the signature page hereof, or at such other address as such party
shall have specified to the other party hereto in writing. All periods of
notice shall be measured from the date of delivery thereof if manually
delivered, from the date of sending thereof if sent by telegram, telex or
facsimile transmission, from the first business day after the date of sending if
sent by overnight courier, or from four days after the date of mailing if
mailed.
Section 26. GRANTOR ACKNOWLEDGEMENTS. The Grantor hereby
acknowledges that (a) it has been advised by (or has had full opportunity to
avail itself of the advice of) counsel in the negotiation, execution and
delivery of this Agreement, (b) the Secured Party has no fiduciary relationship
to the Grantor, the relationship being solely that of debtor and creditor, and
(c) no joint venture exists between the Grantor and the Secured Party.
Section 27. CONTINUING SECURITY INTEREST; ASSIGNMENTS UNDER
FINANCING AGREEMENT. This Agreement shall (a) create a continuing security
interest in the Collateral and shall remain in full force and effect until
payment in full of the Obligations, (b) be binding upon the Grantor, its
successors and assigns, and (c) inure to the benefit of, and be enforceable by,
the Secured Party and its successors, transferees, and assigns. Without
limiting the generality of the foregoing clause (c), the Secured Party may
assign or otherwise transfer all or any portion of its rights and obligations
under the Financing Agreement to any other Persons to the extent and in the
manner provided in the Financing Agreement and may similarly transfer all or any
portion of its rights under this Security Agreement to such Persons.
Section 28. TERMINATION OF SECURITY INTEREST. Upon payment in
full of the Obligations, the Security Interest granted hereby shall terminate.
Upon any such termination, the Secured Party will return to the Grantor such of
the Collateral then in the possession of the Secured Party as shall not have
been sold or otherwise applied pursuant to the terms hereof and execute and
deliver to the Grantor such documents as the Grantor shall reasonably request to
evidence such termination. Any reversion or return of Collateral upon
termination of this Agreement and any instruments of transfer or termination
shall be at the expense of the Grantor and shall be without warranty by, or
recourse on, the Secured Party. As used in this Section, "Grantor" includes any
assigns of Grantor, any Person holding a subordinate security interest in any of
the Collateral or whoever else may be lawfully entitled to any part of the
Collateral.
SECTION 29. GOVERNING LAW AND CONSTRUCTION. THE VALIDITY,
CONSTRUCTION AND ENFORCEABILITY OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF MINNESOTA, WITHOUT
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GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, EXCEPT TO THE EXTENT THAT
THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE MANDATORILY GOVERNED BY
THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF MINNESOTA. Whenever
possible, each provision of this Agreement and any other statement, instrument
or transaction contemplated hereby or relating hereto shall be interpreted in
such manner as to be effective and valid under such applicable law, but, if any
provision of this Agreement or any other statement, instrument or transaction
contemplated hereby or relating hereto shall be held to be prohibited or invalid
under such applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement or any other
statement, instrument or transaction contemplated hereby or relating hereto.
SECTION 30. CONSENT TO JURISDICTION. AT THE OPTION OF THE
SECURED PARTY, THIS AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA
STATE COURT SITTING IN HENNEPIN COUNTY; AND THE GRANTOR CONSENTS TO THE
JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN
SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT THE GRANTOR COMMENCES ANY ACTION IN
ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY
OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT, THE SECURED PARTY
AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE
JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
SECTION 31. WAIVER OF NOTICE AND HEARING. THE GRANTOR HEREBY
WAIVES ALL RIGHTS TO A JUDICIAL HEARING OF ANY KIND PRIOR TO THE EXERCISE BY THE
SECURED PARTY OF ITS RIGHTS TO POSSESSION OF THE COLLATERAL WITHOUT JUDICIAL
PROCESS OR OF ITS RIGHTS TO REPLEVY, ATTACH, OR LEVY UPON THE COLLATERAL WITHOUT
PRIOR NOTICE OR HEARING. THE GRANTOR ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY
COUNSEL OF ITS CHOICE WITH RESPECT TO THIS PROVISION AND THIS AGREEMENT.
SECTION 32. WAIVER OF JURY TRIAL. EACH OF THE GRANTOR AND THE
SECURED PARTY, BY ITS ACCEPTANCE OF THIS AGREEMENT, IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 33. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument.
Section 34. GENERAL. All representations and warranties
contained in this Agreement or in any other agreement between the Grantor and
the Secured Party shall survive the execution, delivery and performance of this
Agreement and the creation and payment of the
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Obligations. The Grantor waives notice of the acceptance of this Agreement by
the Secured Party. Captions in this Agreement are for reference and convenience
only and shall not affect the interpretation or meaning of any provision of this
Agreement.
IN WITNESS WHEREOF, the Grantor has caused this Security
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
XXXXXX MANUFACTURING, INC.
By /s/ Xxxxx X. Xxxxxx
-----------------------
Title President
Address for Grantor:
000 00xx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Grantor's Tax ID #00-0000000
Address for Secured Party :
U.S. Bank National Association
0000 Xxxxxxx Xxxxxx XX, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
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SCHEDULE I
to
Security Agreement
Locations of Equipment and Inventory
as of Date of Security Agreement
Xxxxxx Manufacturing, Inc.
000 00xx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
XXX
SCHEDULE II
to
Security Agreement
Trade Names and Trade Styles
as of date of Security Agreement
Envir-ro-fuge 2000
Xxxxxx
Patents:
Schedule A
SCHEDULE A
U.S. Patent Title Inventor Issue Date
----------- ----- -------- ----------
4,495,856 Rotary Actuator Xxxxxxx Xxxxxxx January 29, 1985
4,919,040 Rotary Vane Xxxxxxx Xxxxxxx April 24, 1990
4,656,925 Face Seal Xxxxxxx Xxxxxxx April 14, 1987
5,123,333 Seals for housing Xxxxxxx Xxxxxxx June 23, 1992
of a rotary
actuator shaft
assembly
