SECURITY AGREEMENT
THIS AGREEMENT, dated August 28, 1997 is made between FLEET BANK
("Bank") and TRANSITION ANALYSIS COMPONENT TECHNOLOGY, INC. a Delaware
corporation ("Grantor") with its chief executve office at 00000 Xxxx Xxxxx
Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx.
1. DEFINITIONS
Unless otherwise indicated in this Agreement, all terms shall have the
same meanings as given to them in the Uniform Commercial Code of the State of
New York as amended from time to time.
(a) "Debtor" means Grantor.
(b) "Collateral" means all assets and property, including without limitation
all goods, tangible property, machinery, equipment, furniture, fixtures,
vehicles, parts, leasehold improvements, accounts, inventory, chattel paper,
documents, chose in action, general intangibles, deposits and deposit accounts,
good will, and intellectual property (including amount others operating systems,
patents, copyrights, trademarks, tradenames, licenses, trade secrets, know-how,
franchises, and proprietary and other rights in data, engineering, technical
plans, drawings, information, methods, systems, processes, inventions, formulas,
applications, software, programs, manuals, and technology, and all other
technology and proprietary rights of Grantor and all applications to acquire
such rights, and in all rights and interests in any of them), of any kind or
nature in which the Grantor has an interest now or in the future, and which are
now existing or hereafter created or acquired, together with all additions,
replacements, accessions, products, and proceeds in any form thereof, including
without limitation any items described in the Schedule attached to this Security
Agreement.
(c) "Liabilities" mean all indebtedness, liabilities, and obligations of every
kind or nature, whether absolute or contingent (including liability pursuant to
any guarantee or endorsement), primary or secondary, direct or indirect, joint
or several, and whether heretofore or hereafter created, arising, or existing or
at any time due and owing from Grantor or Debtor to Bank including without
limitation the payment of all bills, notes, checks, drafts, trade acceptances,
and other evidences of debt upon or by reason of which Grantor or Debtor may or
shall be obligated to Bank as maker, drawer, endorser, acceptor, or otherwise in
any manner whatsoever. Among others, the Liabilities include all sums expended
by the Bank for protection of its interests such as payments made for taxes and
insurance and expenses of collection.
2. SECURITY INTEREST. The Grantor hereby grants to the Bank a security interest
in the Collateral to secure the payment and performance of the Liabilities. This
security interest is specifically intended to be a continuing interest and shall
cover Collateral in which the Grantor acquires an interest after the date of
this Agreement as well as Collateral in which the Grantor now has an interest.
This security interest shall continue until terminated as described in this
Agreement even if all Liabilities are paid in full from time to time. The Bank
shall have the right to apply the Collateral and any proceeds therefrom to all
or any part of the Liabilities as and in the order the Bank may elect, whether
such Liabilities are otherwise secured and whether due or not.
3. LOCATIONS OF GRANTOR AND COLLATERAL. The principal office of the Grantor is
at the address shown in the preamble to this Agreement. All locations at which
the Collateral will be kept or at which the Grantor does business are indicated
on the Schedule attached to and made a part of this Agreement. Grantor will not
change the locations at which any of the Collateral is kept and will notify the
Bank immediately of any new or changed locations at which any of the Collateral
is kept or the Grantor does business, and of any change in the name of the
Grantor. The Collateral will remain personalty and will not be affixed to real
estate without the prior consent of the Bank. If any of the Collateral is or
will be a fixture, Grantor will provide legal descriptions and the names of
record owners of the premises to which the Collateral will be affixed sufficient
for perfection of the security interests of the Bank. The Grantor will provide
disclaimers of interest and removal agreements, in form satisfactory to the
Bank, signed by all parties other than Grantor having interest in premises at
which any Collateral is located.
4. FIRST LIEN. Except for the security interest granted hereby and any other
interests to which Bank has consented in writing, Grantor is the owner of the
Collateral free from all liens, encumbrances, and security interests. Grantor
will not sell or transfer
the Collateral or any interest therein (including, without limitation, a
security interest) without the prior written consent of the Bank except for
sales of inventory and collection of accounts in the ordinary course of business
and prior to an Event of Default. Grantor will defend the Collateral against the
claims and demands of all persons, and will cause the immediate removal and
termination of any levy, execution, judgment or other lien, or similar claim of
third persons to the Collateral.
5. PERFECTION OF SECURITY INTEREST. Grantor will executed and deliver to Bank
such financing statements, security agreements, assignments (including without
limitation assignments of specific accounts and chattel paper), and other
papers, as Bank may at any time or from time to time reasonably request. Grantor
hereby authorizes Bank to execute and file financing statements with or without
the signature of the Grantor from time to time as Bank may deem necessary or
desirable. If the Collateral is a motor vehicle required to be titled under
applicable law, Grantor warrants that Bank's security interest will be recorded
on the title certificates covering the Collateral and will deliver such
certificates or other evidence of ownership to Bank as the Bank requests.
Grantor hereby appoints Bank as its attorney in fact to execute and deliver
notices of lien, financing statements, assignments, and any other documents,
notices, and agreements necessary for the perfection of Bank's security
interests in the Collateral. Grantor agrees to pay the costs of filing or
perfection of the Bank's security interests, searches of the public records, and
releases or assignments of the Bank's interests.
The Grantor will provide disclaimers of interest and removal agreements,
in form satisfactory to the Bank, signed by all parties other than Grantor
having an interest in premises at which any Collateral is located.
6. USE AND MAINTENANCE OF COLLATERAL. Grantor will not use the Collateral in
violation of law or any policy of insurance thereon. Grantor may sell its
inventory, use and consume raw materials and supplies, and collect its accounts,
but only in the ordinary course of its business and prior to an Event of
Default. Bank or its nominee may inspect the Collateral and Grantor's records
regarding the same at any reasonable time, wherever located, and xxx make
extracts therefrom and copies thereof. Grantor will keep the Collateral in good
order and repair except for normal wear and tear in the ordinary course of
business.
7. TAXES. Grantor will pay promptly, when due, all taxes and assessments upon
the Collateral or its use or operation, or upon this Agreement.
8. INSURANCE. Grantor at all times will keep the Collateral insured in such
amounts, with such insurance companies chosen by Grantor, and against such
risks, all as are satisfactory to the Bank. In any event and without specific
request by Bank, Grantor will insure the Collateral against fire, including
so-called extended coverage, and theft. All insurance policies shall name Bank
as an additional insured and shall provide for losses covered thereby to be
payable to Bank and Grantor as their respective interests may appear. The
endorsements on any insurance policy shall be in a form satisfactory to Bank and
all policies of insurance shall provide for not less than thirty (30) days'
prior notice of cancellation to the Bank. Grantor will deliver certificates and
policies evidencing required insurance to the Bank upon its request and in any
event at least annually.
After any Event of Default hereunder, the Bank may, but need not, (i) cancel, in
accordance with applicable law, any insurance contract covering the Collateral
or its ownership, (ii) demand and receive any return premiums, unearned premium
refunds and dividends payable in respect thereof (the Grantor hereby irrevocably
designating, constituting and appointing Bank as its true and lawful agent so to
do) and (iii) apply any and all sums received by the Bank as a result of such
cancellation, after deducting therefrom any and all expenses incident thereto,
toward payment of the Liabilities. Grantor will notify insurer and Bank in the
event of any loss, damage, or other casualty affecting the Collateral. Grantor
hereby assigns to Bank any and all monies which may become due and payable under
any policy insuring the Collateral, directs any such insurance company to make
payments directly to Bank, and authorizes Bank to apply such monies in payment
on account of the Liabilities, whether or not due, and to remit any surplus to
Grantor. Grantor hereby irrevocably appoints Bank as its attorney in fact, with
full power of substitution, to (i) make and adjust claims, (ii) receive all
proceeds and payments including the return of unearned premiums, (iii) execute
proofs of claim, (iv) endorse drafts and other instruments for the payment of
money, (v) execute releases, (vi) negotiate settlements, (vii) cancel any
insurance referred to in this contract, and (viii) do all other things necessary
and required to effect a settlement under or to realize the benefits of any
insurance policy.
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9. PROTECTION OF BANK'S INTEREST. Seven or more days after the day the Bank
mails the Grantor notice, upon failure of the Grantor to (i) remove liens or
interests prohibited by Section 4 of this Agreement, (ii) pay taxes or
assessments as required by Section 7 of this Agreement, or (iii) provide
evidence satisfactory to the Bank of insurance as required by Section 8 of this
Agreement, the Bank in its discretion may discharge any such liens or interest,
pay taxes or assessments, and obtain insurance coverage on the Collateral. Bank
also may pay any costs of perfection, searches, releases, or assignments
pursuant to Section 5 of this Agreement. Grantor agrees to reimburse Bank on
demand for any and all expenditures so made, and until paid the amount thereof
also, shall be part of the Liabilities secured by the Collateral. Bank shall
have no obligation to Grantor or Debtor to make any such expenditures nor shall
be making thereof relieve any default hereunder.
10. REPRESENTATIONS REGARDING COLLATERAL. Grantor represents and warrants to
Bank, and so long as this Agreement remains in effect shall be deemed to
continue to represent and warrant that: (i) the collateral is genuine and what
it purports to be; (ii) each account and chattel paper represents a bona fide
transaction and is enforceable according to the contract underlying the account
or the writings constituting the chattel paper; (iii) amount shown on Grantor's
books and on any invoice or statement delivered to the Bank with respect to
accounts, chattel paper, and appropriate general intangibles is correct and duly
owing to Grantor; (iv) no set-off or counterclaim to any account or chattel
paper exists, and other discounts or deductions given in the ordinary course of
business and fully disclosed on the books and records of the Grantor and on
financial statements given to the Bank; and (v) no agreement has been made with
any person under which any deduction or discount may be claimed, except regular
discounts allowed by Grantor for prompt payments of accounts.
11. GRANTOR'S COVENANTS. So long as this Agreement remains in effect Grantor
will; (i) furnish Bank at such intervals as Bank may prescribe with a
certificate (in such form as Bank may from time to time specify) containing such
information with respect to the Collateral as Bank may require including without
limitation inventory listings and accounts agings; (ii) keep accurate and
complete records of the Collateral in accordance with generally accepted
accounting principles consistently applied.
Grantor also will, if requested by the Bank: (a) give Bank assignments, in form
acceptable to Bank, of specific accounts, chattel paper or general intangibles;
(b) xxxx its records evidencing the Collateral in a manner satisfactory to the
Bank so as to indicate the security interest of the Bank hereunder; (c) furnish
to the Bank any chattel paper, invoices, documents, schedules, purchase orders,
delivery receipts, contracts or other documents representing or relating to any
of the collateral; (d) promptly reflect in its books, records, and reports to
the Bank the rejection of goods, delay in delivery or performance, or claims
made, in regard to any Collateral and after an Event of Default inform the Bank
immediately of any of the same; (e) furnish to the Bank all information received
by Grantor affecting the financial standing of any account debtor, debtor under
any general intangible, or obligor under any chattel paper; (f) immediately
notify the Bank if any of the Collateral arises out of contracts for the
improvement of real property, deals with a public improvement or is with the
United States, any state, or any department, agency or instrumentality thereof,
and execute any instruments and take any steps required by the Bank in order
that all moneys due or to become due under any such contract shall be assigned
to the Bank and notice thereof be given as required by law; (g) furnish to the
Bank such financial statements, reports, certificates, lists of account debtors
(showing names, addresses and amounts owing) and other data concerning the
Collateral and other matters as Bank may, from time to time, specify; and (h)
fully cooperate with the Bank in its rights and methods for verification of the
Collateral.
12. DEFAULT. The following events or conditions shall be an "Event of Default"
under this Agreement: (a) the occurrence and continuation beyond applicable
notice and/or grace periods, of any Event of Default under the Credit Agreement
made between Grantor and Bank bearing even date herewith, (b) any failure, to
comply with any term of this Agreement for ten days after notice or such
additional period of time, not to exceed 90 days, as is required, with the
exercise of due diligence, to cure such default, (c) any representation or
warranty made to Bank by Grantor in this Agreement proving false or misleading
in any material respect as of the date made, (d) loss, theft, material damage or
destruction of the Collateral, or (e) material or reasonably projected material
decline in the value of the Collateral. These Events of Default are not intended
to affect in any way any Liability payable on demand and shall not prejudice the
Bank's rights to demand payment of any such Liabilities at any time.
13. REMEDIES. Upon the occurrence of an Event of Default, the Bank may declare
all of the Liabilities to be immediately due and payable and Bank shall have the
rights and remedies of a secured party under the Uniform Commercial Code of the
State
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of New York as amended from time to time in any jurisdiction where enforcement
of this Agreement is sought in addition to all other rights and remedies at law
or in equity. Among other remedies, the Bank may take immediate possession of
the Collateral and for that purpose Bank may, so far as Grantor can give
authority therefor, enter upon any premises on which the Collateral or any part
thereof may be situated and secure or remove the same therefrom. Upon request of
the Bank, Grantor will assemble and make the Collateral available to the Bank,
at a reasonable place and time designated by the Bank. Grantor's failure to take
possession of any Collateral at any time and place reasonably specified by the
Bank in writing to the Grantor shall constitute an abandonment of such property.
Grantor and Debtor agree that notice of the time and place of public sale of any
of the Collateral or of the time after which any private sale thereof is to be
made or of other disposition of the Collateral shall be deemed reasonable notice
seven days after such notice is deposited in the mail or otherwise delivered to
Grantor and Debtor at the addresses shown in the preamble and Section 1 of this
Agreement respectively.
In addition to its other rights, the Bank may but shall not be obligated
to notify any parties which are obligated to pay Grantor any Collateral or
proceeds thereof, to make all payments directly to Bank. Grantor authorizes such
parties to make such payments directly to Bank and to rely on notice from the
Bank without further inquiry. Bank may demand and take all necessary or
desirable steps to collect such Collateral in either Bank's or Grantor's name,
with the right to enforce, compromise, settle, or discharge any of the
foregoing. Bank may endorse Grantor's name on any checks, commercial paper,
instruments, and the like pertaining to the foregoing.
The Bank shall not be responsible to Grantor for loss or damage resulting
from the Bank's failure to enforce or collect any Collateral or any monies due
or to become due under any Liability of Debtor or Grantor to Bank. Bank shall
have no obligation to take, and Grantor shall have the sole responsibility for
taking, any and all steps to preserve rights against any and all prior parties
to any Collateral, whether or not in Bank's possession.
After an Event of Default, the Grantor (i) will make no change in any
account (or the contract underlying such account), chattel paper, or general
intangible, and (ii) shall receive as the sole property of the Bank and hold in
trust for the Bank all monies, checks, notes, drafts, and other property
(collectively called "items of payment") representing the proceeds of any
Collateral. After an Event of Default, the Bank may but shall be under no
obligation to: (a) notify all appropriate parties that the Collateral, or any
part thereof, has been assigned to the Bank; (b) collect any or all accounts,
chattel paper or general intangibles in its or Debtor's name, apply any such
collections against such Liabilities as the Bank may select; (c) take control of
any cash or non-cash proceeds of any item of the Collateral; (d) compromise,
extend or renew any account, chattel paper, general intangible document, or deal
with the same as it may deem advisable; and (e) make exchanges, substitutions or
surrenders of items compromising the Collateral.
The rights of the Bank are cumulative, and the Bank may enforce its rights
under this Agreement irrespective of any other collateral, guaranty, right, or
remedy it may have. The exercise of all or a part of its rights or remedies
hereunder shall not prevent the Bank from exercising at the same or any other
time any other right or remedy with respect to the Liabilities. The Grantor
authorizes the Bank in its sole discretion to direct the order or manner of the
disposition of the Collateral.
From the proceeds realized from the Collateral the Bank shall be entitled
to retain all sums secured hereby as well as its reasonable expense of
collection including without limitation those of retaking, holding,
safeguarding, accounting for, preparing for sale, selling, and reasonable
attorneys' fees and legal expenses. If the proceeds realized from the Collateral
are not sufficient to defray said expenses and to satisfy the balance due on the
Liabilities, the Grantor shall remain liable for such expenses and Debtor shall
remain liable for such expenses and any deficiency with respect to the
Liabilities. Any payments or proceeds from realization on the Collateral may be
applied to the Liabilities in whatever order or manner the Bank elects.
14. ADDITIONAL SECURITY/SETOFF. The Bank shall have a security interest in and
right of setoff with respect to all deposits or other sums credited by or due
from Bank to Grantor and a security interest in all securities or other property
of Grantor in Bank's possession for safekeeping or otherwise. Bank's Security
interest shall secure payment of the Liabilities. In the event of any Event of
Default under this Agreement, regardless of the adequacy of collateral, without
any demand or
notice, except as required by applicable law, Bank may apply or setoff such
deposits or other sums and may sell or dispose of any or all of such securities
or other property and may exercise any and all rights it may have under the New
York Uniform Commercial Code, as in effect from time to time. The rights of Bank
under this Agreement are in addition to, and not exclusive
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of, any other rights it may have with respect to such deposits, sums,
securities, or other property under other agreements or applicable principles of
law. Bank shall have not duty to take steps to preserve rights against prior
parties as to such securities or other property.
15. CONTINUING AGREEMENT/TERMINATION. This is a continuing Agreement, and no
notice of the creation or existence of the Liabilities, renewal, extension or
modification thereof need be given to Grantor. This security interest shall
continue in effect notwithstanding that from time to time no Liabilities may
exist. This Agreement may be terminated only (i) by a written agreement of the
Bank, or (ii) upon written request of Grantor at such time as the Liabilities
have been satisfied in full and the Bank has no remaining commitments to Debtor
of any kind.
16. NO WAIVER. Grantor agrees that no representation, promise, or agreement made
by the Bank or by any officer or employee of Bank, at prior, or subsequent to
the execution and delivery of this Agreement shall modify, alter, limit, or
otherwise abridge the rights and remedies of Bank hereunder unless agreed by
Bank in writing. None of the rights and remedies of Bank hereunder shall be
modified, altered, limited, or otherwise abridged or waived by any
representation, promise, or agreement hereafter made or by any course of conduct
hereafter pursued by the Bank. No delay or omission on the part of the Bank in
exercising any right hereunder shall operate as a waiver of such right or of any
other right under this Agreement, and waiver of any right shall not be deemed
waiver of any other right unless expressly agreed by the Bank in writing.
17. JOINT AND SEVERAL LIABILITY. if there are more than one Grantor hereunder,
their representations, warranties, liabilities, and obligations hereunder shall
be joint and several.
18. LAWS/WAIVER OF JURY TRIAL. The validity, construction, and performance of
this Agreement shall be governed by the laws of the State of New York. Grantor
consents to jurisdiction and service of process, which may be effected by
certified mail, in the courts of the State of New York and in the courts of the
United States having jurisdiction hereof. THE GRANTOR WAIVES TRIAL BY JURY OF
ANY CLAIMS OR PROCEEDINGS WITH RESPECT TO THIS AGREEMENT, OR THE LIABILITIES, TO
THE FULLEST EXTENT ALLOWED BY LAW.
19. PARTIES IN INTEREST. All of the terms and provisions of this Agreement shall
inure to the benefit of, be binding upon and be enforceable by the respective
heirs, executors, legal representatives, successors, and assigns of the parties
hereto.
20. SEVERABILITY. Any partial invalidity of the provisions of this Agreement
shall not invalidate the remaining portions hereof or thereof.
21. MISCELLANEOUS. Grantor hereby expressly waives demand, presentment, protest,
or notice of dishonor on any and all of the Liabilities and with respect to the
Collateral.
Grantor: TRANSITION ANALYSIS COMPONENT
TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
WARNING: IT IS A CRIMINAL OFFENSE IN NEW
YORK STATE FOR A DEBTOR TO KNOWINGLY SELL OR
OTHERWISE DISPOSE OF COLLATERAL IN
CONTRAVENTION OF THE TERMS OF A SECURITY AGREEMENT.
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STATE OF NEW YORK )
)ss.:
COUNTY OF WESTCHESTER )
On the 28th day of August, 1997, before me personally came XXXXXX X.
XXXXX to me known, who, being by me duly sworn, did depose and say that he has
an address at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX; that he is the Chief Financial
Officer of TRANSITION ANALYSIS COMPONENT TECHNOLOGY, INC., the corporation
described in and which executed the foregoing instrument; and that he signed his
name thereto by order of the board of directors of said corporation.
/s/ Xxxx Xxxxxx-Xxxxxx
--------------------------------
Notary Public
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SCHEDULE A TO ACCOUNTS SECURITY AGREEMENT
I. This Security Agreement applies to the following specific Collateral:
All Collateral as defined in Section 1
II. All of the locations at which the Collateral is located or at which the
Grantor maintains a place of business are listed below. If any of the Collateral
is a fixture, the record owner of the location at which the Collateral is kept
is indicated.
Address County
000 Xxxxxxx Xxxxxx Xxxxxxxxxxx
Xxxxxxxx, Xxx Xxxx
0000 X.X. Xxxx.
Xxxxxxx, Xxxxxxx
000 Xxxxxxx Xx. Xx. Xxxxxxx (Xxxxxx)
Slidell, Lousianna
