SECURITY AGREEMENT
Exhibit 99.2
1. THE SECURITY. The undersigned Xxxxxx Corporation, a corporation formed under the laws of
the State of Delaware (the “Pledgor”) hereby assigns and grants to Bank of America, N.A. (the
“Bank”) a security interest in the following described property now owned or hereafter acquired by
the Pledgor (“Collateral”):
(a) All accounts, contract rights, chattel paper, instruments, deposit accounts,
letter of credit rights, payment intangibles and general intangibles, including all amounts
due to the Pledgor from a factor; rights to payment of money from the Bank under any Swap
Contract (as defined in Paragraph 2 below); and all returned or repossessed goods which, on
sale or lease, resulted in an account or chattel paper.
(b) All inventory, including all materials, work in process and finished goods.
(c) All machinery, furniture, fixtures and other equipment of every type now owned
or
hereafter acquired by the Pledgor.
(d) All of the Pledgor’s deposit accounts with the Bank. The Collateral shall
include
any renewals or rollovers of the deposit accounts, any successor accounts, and any general
intangibles and choses in action arising therefrom or related thereto.
(e) All instruments, notes, chattel paper, documents, certificates of deposit,
securities and investment property of every type. The Collateral shall include all liens,
security agreements, leases and other contracts securing or otherwise relating to the
foregoing.
(f) All general intangibles, including, but not limited to, (i) all patents,
and all
unpatented or unpatentable inventions; (ii) all trademarks, service marks, and trade names;
(iii) all copyrights and literary rights; (iv) all computer software programs; (v) all mask
works of semiconductor chip products; (vi) all trade secrets, proprietary information,
customer lists, manufacturing, engineering and production plans, drawings, specifications,
processes and systems. The Collateral shall include all good will connected with or
symbolized by any of such general intangibles; all contract rights, documents, applications,
licenses, materials and other matters related to such general intangibles; all tangible
property embodying or incorporating any such general intangibles; and all chattel paper and
instruments relating to such general intangibles.
(g) All negotiable and nonnegotiable documents of title covering any Collateral.
(h) All accessions, attachments and other additions to the Collateral, and all
tools,
parts and equipment used in connection with the Collateral.
(i) All substitutes or replacements for any Collateral, all cash or non-cash
proceeds,
product, rents and profits of any Collateral, all income, benefits and property receivable
on account of the Collateral, all rights under warranties and insurance contracts, letters
of credit, guaranties or other supporting obligations covering the Collateral, and any
causes of action relating to the Collateral.
(j) All books and records pertaining to any Collateral, including but not limited
to
any computer-readable memory and any computer hardware or software necessary to process such
memory (“Books and Records”).
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2. THE INDEBTEDNESS. The Collateral secures and will secure all Indebtedness of the Pledgor
to the Bank and any of its affiliates. Each party obligated under any Indebtedness is referred to
in this Agreement as a “Debtor.” “Indebtedness” means all debts, obligations or liabilities now or
hereafter existing, absolute or contingent of the Debtor to the Bank and any of its affiliates,
whether voluntary or involuntary, whether due or not due, or whether incurred directly or
indirectly or acquired by the Bank and any of its affiliates by assignment or otherwise, including
without limitation liabilities related to credit cards, treasury or cash management products, and
overdrafts. Indebtedness shall include, without limitation, all obligations of the Debtor arising
under any Swap Contract. “Swap Contract” means any interest rate, credit, commodity or equity
swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate
swap, currency option, securities puts, calls, collars, options or forwards or any combination of,
or option with respect to, these or similar transactions now or hereafter entered into between the
Debtor and the Bank and any of its affiliates.
3. PLEDGOR’S COVENANTS. The Pledgor represents, covenants and warrants that unless
compliance is waived by the Bank in writing:
(a) The Pledgor will properly preserve the Collateral; defend the Collateral
against
any adverse claims and demands; and keep accurate Books and Records.
(b) The Pledgor’s chief executive office is located in the state specified on
the
signature page hereof. In addition, the Pledgor is incorporated in or organized under the
laws of the state specified on such signature page. The Pledgor shall give the Bank at
least thirty (30) days notice before changing its chief executive office or state of
incorporation or organization. Subject to its right to transfer and dispose of Collateral
as provided herein, the Pledgor will notify the Bank in writing prior to any change in the
location of any Collateral, including the Books and Records.
(c) The Pledgor will notify the Bank in writing prior to any change in the
Pledgor’s
name, identity or business structure.
(d) Except as permitted by the Amended and Restated Loan Agreement dated on even
date
herewith made between the Bank and the Pledgor (including as the same is modified, extended,
or replaced from time to time, the “Loan Agreement”), the Pledgor has not granted and will
not grant any security interest in any of the Collateral except to the Bank, and will keep
the Collateral free of all liens, claims, security interests and encumbrances of any kind or
nature except the security interest of the Bank.
(e) The Pledgor will promptly notify the Bank in writing of any event which affects
the value of the Collateral, the ability of the Pledgor or the Bank to dispose of the
Collateral, or the rights and remedies of the Bank in relation thereto, including, but not
limited to, the levy of any legal process against any Collateral and the adoption of any
marketing order, arrangement or procedure affecting the Collateral, whether governmental or
otherwise.
(f) The Pledgor shall pay all costs necessary to preserve, defend, enforce and
collect
the Collateral, including but not limited to taxes, assessments, insurance premiums,
repairs, rent, storage costs and expenses of sales, and any costs to perfect the Bank’s
security interest (collectively, the “Collateral Costs”). Without waiving the Pledgor’s
default for failure to make any such payment, the Bank at its option may pay any such
Collateral Costs, and discharge encumbrances on the Collateral, and such Collateral Costs
payments shall be a part of the Indebtedness and bear interest at the rate set out in the
Loan Agreement. The Pledgor agrees to reimburse the Bank on demand for any Collateral Costs
so incurred.
(g) Until the Bank exercises its rights to make collection, the Pledgor will
diligently collect all Collateral in the ordinary course of business.
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(h) If any Collateral is or becomes the subject of any registration certificate,
certificate of deposit or negotiable document of title, including any warehouse receipt or
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lading, the Pledgor shall immediately deliver such document to the Bank, together with any
necessary endorsements.
(i) The Pledgor will not sell, lease, agree to sell or lease, or otherwise dispose
of
any Collateral except with the prior written consent of the Bank; provided, however, the
Pledgor may sell inventory in the ordinary course of business, may sell or otherwise dispose
of equipment that is worn out, obsolete, or no longer used or useful in Borrower’s business,
and so long as no event of default exists that has not been waived may sell property
described in Section 1(e) at any time.
(j) The Pledgor will maintain and keep in force insurance covering the Collateral
against fire and extended coverages (including without limitation windstorm coverage, and
hurricane coverage as applicable), to the extent that any Collateral is of a type which can
be so insured. Such insurance shall require losses to be paid on a replacement cost basis,
be issued by insurance companies acceptable to the Bank and include a loss payable
endorsement in favor of the Bank in a form acceptable to the Bank. Upon the request of the
Bank, the Pledgor will deliver to the bank a copy of each insurance policy, or, if permitted
by the Bank, a certificate of insurance listing all insurance in force.
(k) The Pledgor will not attach any Collateral to any real property or fixture in a
manner which might cause such Collateral to become a part thereof unless the Pledgor first
obtains the written consent of any owner, holder of any lien on the real property or
fixture, or other person having an interest in such property to the removal by the Bank of
the Collateral from such real property or fixture. Such written consent shall be in form
and substance acceptable to the Bank and shall provide that the Bank has no liability to
such owner, holder of any lien, or any other person.
(l) Exhibit A to this Agreement is a complete list of all patents,
trademark
and service xxxx registrations, copyright registrations, mask work registrations, and all
applications therefor, in which the Pledgor has any right, title, or interest, throughout
the world. To the extent required by the Bank in its discretion, the Pledgor will promptly
notify the Bank of any acquisition (by adoption and use, purchase, license or otherwise) of
any patent, trademark or service xxxx registration, copyright registration, mask work
registration, and applications therefor, and unregistered trademarks and service marks and
copyrights, throughout the world, which are granted or filed or acquired after the date
hereof or which are not listed on the Exhibit. The Pledgor authorizes the Bank, without
notice to the Pledgor, to modify this Agreement by amending the Exhibit to include any such
Collateral.
(m) Unless the failure to do so would not have a material adverse effect on the
Borrower’s business or financial condition taken as a whole:
(i) The Pledgor will, at its expense, diligently
prosecute all patent, trademark or
service xxxx or copyright applications pending on or after the date hereof, will maintain in
effect all issued patents and will renew all trademark and service xxxx registrations,
including payment of any and all maintenance and renewal fees relating thereto, except for
such patents, service marks and trademarks that are being sold, donated or abandoned by the
Pledgor pursuant to the terms of its intellectual property management program.
(ii) The Pledgor will promptly make application on
any patentable but unpatented
inventions, registerable but unregistered trademarks and service marks, and copyrightable
but uncopyrighted works.
(iii) The Pledgor will at its expense protect and
defend all rights in the Collateral
against any material claims and demands of all persons other than the Bank and
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will, at its
expense, enforce all rights in the Collateral against any and all infringers of the
Collateral where such infringement would materially impair the value or use of the
Collateral to the Pledgor or the Bank.
(iv) The Pledgor will not license or transfer any of
the Collateral, except for such
licenses as are customary in the ordinary course of the Pledgor’s business, or except with
the Bank’s prior written consent.
4. ADDITIONAL OPTIONAL REQUIREMENTS. The Pledgor agrees that the Bank may at its option at
any time, whether or not the Pledgor is in default:
(a) Require the Pledgor to deliver to the Bank (i) copies of or extracts from
the
Books and Records, and (ii) information on any contracts or other matters affecting the
Collateral.
(b) Examine the Collateral, including the Books and Records, and make copies of or
extracts from the Books and Records, and for such purposes enter at any reasonable time upon
the property where any Collateral or any Books and Records are located.
(c) Require the Pledgor to deliver to the Bank any instruments, chattel paper or
letters of credit which are part of the Collateral, and to assign to the Bank the proceeds
of any such letters of credit.
(d) Notify any account debtors, any buyers of the Collateral, or any other persons
of
the Bank’s interest in the Collateral.
5. DEFAULTS. Any one or more of the following shall be a default hereunder:
(a) Any event of default occurs as described in Article 10 of the Loan
Agreement (or
any successor Article), after giving effect to any applicable grace or cure periods provided
therein.
(b) The Pledgor breaches any term, provision, warranty or representation under this
Agreement and such breach remains uncured after any applicable cure period.
(c) The Bank fails to have an enforceable first lien (except for any prior liens to
which the Bank has consented in writing) on or security interest in the Collateral if (i)
the security interest and lien can be perfected and achieve priority by the filing of
financing statements under the Uniform Commercial Code, or (ii) the security interest and
lien covers specific Collateral not covered by clause (i) with respect to which the Bank has
specifically requested perfection and priority of its security interest and lien.
(d) Any custodian, receiver or trustee is appointed to take possession, custody or
control of all or a substantial portion of the Collateral.
(e) Any involuntary lien of any kind or character attaches to any Collateral,
except
for liens for taxes not yet due.
6. BANK’S REMEDIES AFTER DEFAULT. In the event of any default, the Bank may do any one or
more of the following, to the extent permitted by law:
(a) Declare any Indebtedness immediately due and payable, without notice or demand.
(b) Enforce the security interest given hereunder pursuant to the Uniform
Commercial
Code and any other applicable law.
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(c) Enforce the security interest of the Bank in any deposit account of the Pledgor
maintained with the Bank by applying such account to the Indebtedness.
(d) Require the Pledgor to obtain the Bank’s prior written consent to any
sale, lease,
agreement to sell or lease, or other disposition of any Collateral consisting of inventory.
(e) Require the Pledgor to segregate all collections and proceeds of the Collateral
so
that they are capable of identification and deliver daily such collections and proceeds to
the Bank in kind.
(f) Require the Pledgor to direct all account debtors to forward all payments and
proceeds of the Collateral to a post office box under the Bank’s exclusive control.
(g) Require the Pledgor to assemble the Collateral, including the Books and
Records,
and make them available to the Bank at a place designated by the Bank.
(h) Enter upon the property where any Collateral, including any Books and Records,
are
located and take possession of such Collateral and such Books and Records, and use such
property (including any buildings and facilities) and any of the Pledgor’s equipment, if the
Bank deems such use necessary or advisable in order to take possession of, hold, preserve,
process, assemble, prepare for sale or lease, market for sale or lease, sell or lease, or
otherwise dispose of, any Collateral.
(i) Demand and collect any payments on and proceeds of the Collateral. In
connection
therewith the Pledgor irrevocably authorizes the Bank to endorse or sign the Pledgor’s name
on all checks, drafts, collections, receipts and other documents, and to take possession of
and open the mail addressed to the Pledgor and remove therefrom any payments and proceeds of
the Collateral.
(j) Grant extensions and compromise or settle claims with respect to the Collateral
for less than face value, all without prior notice to the Pledgor.
(k) Use or transfer any of the Pledgor’s rights and interests in any
Intellectual
Property now owned or hereafter acquired by the Pledgor, if the Bank deems such use or
transfer necessary or advisable in order to take possession of, hold, preserve, process,
assemble, prepare for sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral. The Pledgor agrees that any such use or transfer shall be
without any additional consideration to the Pledgor. As used in this paragraph,
“Intellectual Property” includes, but is not limited to, all trade secrets, computer
software, service marks, trademarks, trade names, trade styles, copyrights, patents,
applications for any of the foregoing, customer lists, working drawings, instructional
manuals, and rights in processes for technical manufacturing, packaging and labeling, in
which the Pledgor has any right or interest, whether by ownership, license, contract or
otherwise.
(l) Have a receiver appointed by any court of competent jurisdiction to take
possession of the Collateral. The Pledgor hereby consents to the appointment of such a
receiver and agrees not to oppose any such appointment.
(m) Take such measures as the Bank may deem necessary or advisable to take
possession
of, hold, preserve, process, assemble, insure, prepare for sale or lease, market for sale or
lease, sell or lease, or otherwise dispose of, any Collateral, and the Pledgor hereby
irrevocably constitutes and appoints the Bank as the Pledgor’s attorney-in-fact to perform
all acts and execute all documents in connection therewith.
(n) Without notice or demand to the Pledgor, set off and apply against any and all
of
the Indebtedness any and all deposits (general or special, time or demand, provisional or
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final) and any other indebtedness, at any time held or owing by the Bank or any of the
Bank’s agents or affiliates to or for the credit of the account of the Pledgor or any
guarantor or endorser of the Pledgor’s Indebtedness.
(o) Exercise any other remedies available to the Bank at law or in equity.
7. MISCELLANEOUS.
(a) Any waiver, express or implied, of any provision hereunder and any delay or
failure by the Bank to enforce any provision shall not preclude the Bank from enforcing any
such provision thereafter.
(b) The Pledgor shall, at the request of the Bank, execute such other agreements,
documents, instruments, or financing statements in connection with this Agreement as the
Bank may reasonably deem necessary.
(c) All notes, security agreements, subordination agreements and other documents
executed by the Pledgor or furnished to the Bank in connection with this Agreement must be
in form and substance satisfactory to the Bank.
(d) This Agreement shall be governed by and construed in accordance with the laws
of
the State of New York. To the extent that the Bank has greater rights or remedies under
federal law, whether as a national bank or otherwise, this paragraph shall not be deemed to
deprive the Bank of such rights and remedies as may be available under federal law.
Jurisdiction and venue for any action or proceeding to enforce this Agreement shall be the
forum appropriate for such action or proceeding against the Pledgor, to which jurisdiction
the Pledgor irrevocably submits and to which venue the Pledgor waives to the fullest extent
permitted by law any defense asserting an inconvenient forum in connection therewith.
(e) All rights and remedies herein provided are cumulative and not exclusive of any
rights or remedies otherwise provided by law. Any single or partial exercise of any right
or remedy shall not preclude the further exercise thereof or the exercise of any other right
or remedy.
(f) All terms not defined herein are used as set forth in the Uniform Commercial
Code.
(g) In the event of any action by the Bank to enforce this Agreement or to protect
the
security interest of the Bank in the Collateral, or to take possession of, hold, preserve,
process, assemble, insure, prepare for sale or lease, market for sale or lease, sell or
lease, or otherwise dispose of, any Collateral, the Pledgor agrees to pay immediately the
costs and expenses thereof, together with reasonable attorneys’ fees and allocated costs for
in-house legal services to the extent permitted by law.
(h) In the event the Bank seeks to take possession of any or all of the Collateral
by
judicial process, the Pledgor hereby irrevocably waives any bonds and any surety or security
relating thereto that may be required by applicable law as an incident to such possession,
and waives any demand for possession prior to the commencement of any such suit or action.
(i) This Agreement shall constitute a continuing agreement, applying to all future
as
well as existing transactions, whether or not of the character contemplated at the date of
this Agreement, and if all transactions between the Bank and the Pledgor shall be closed at
any time, shall be equally applicable to any new transactions thereafter.
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(j) The Bank’s rights hereunder shall inure to the benefit of its successors
and
assigns. In the event of any assignment or transfer by the Bank of any of the Indebtedness
or the Collateral, the Bank thereafter shall be fully discharged from any responsibility
with respect to the Collateral so assigned or transferred, but the Bank shall retain all
rights and powers hereby given with respect to any of the Indebtedness or the Collateral not
so assigned or transferred. All representations, warranties and agreements of the Pledgor
if more than one are joint and several and all shall be binding upon the personal
representatives, heirs, successors and assigns of the Pledgor.
(k) The Pledgor agrees that the Collateral may be sold as provided for in this
Security Agreement and expressly waives any rights of notice of sale, advertisement
procedures, or related provisions granted under applicable law, including the New York Lien
Law.
8. FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT:
(A) THIS DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN
OUTLINE OF TERMS AND CONDITIONS RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH COMMITMENT
LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO THE
CONTRARY, (C) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS DOCUMENT MAY
NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
UNDERSTANDINGS OF THE PARTIES.
This Agreement continues the Bank’s security interests granted by, but amends and restates in
its entirety, (i) the Amended and Restated Security Agreement (Accounts, Inventory, Chattel Paper,
Documents, Technology, and General Intangibles) dated November 3, 1999 made between Borrower and
Fleet National Bank (predecessor by merger to the Bank) and (ii) the Amended and Restated Security
Agreement (Goods and Equipment) dated November 3, 1999 made between Borrower and Fleet National
Bank.
The parties executed this Agreement as of December 5, 2007, intending to create an instrument
executed under seal.
| BANK OF AMERICA, N.A. | ||||||
| By: |
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| Title: |
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| Address for Notices: Xxx Xxxx Xxxxxx Xxxxxxxxx, Xxx Xxxx 00000 |
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| XXXXXX CORPORATION | ||||||
| By: |
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(Seal) | ||||
| Title: |
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Pledgor’s Location and Mailing Address:
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Pledgor’s state of incorporation: Delaware
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