Exhibit 10.26
SECURITY AGREEMENT
SECURITY AGREEMENT dated as of February 27, 2003, between Titan PCB
East, Inc., a Delaware corporation (the "Company"), and Personal Resources
Management, Inc. (the "Collateral Agent") as Collateral Agent on behalf of the
Purchasers of the Note (as defined herein) as identified on Exhibit A attached
hereto (collectively, the "Secured Parties" and each individually, a "Secured
Party").
W I T N E S S E T H :
WHEREAS, the Company proposes to issue and sell a senior secured note
(the "Note") to the Secured Parties pursuant to a Security Purchase Agreement,
dated as of the date hereof, among the Company, Ventures-National Incorporated,
a Utah corporation and parent of the Company and the Secured Parties;
WHEREAS, the Secured Parties are willing to purchase the Note only upon
the condition, among others, that the Company shall have executed and delivered
this Security Agreement to the Collateral Agent for the benefit of the Secured
Parties;
NOW THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Company and Collateral Agent hereby
agree for the benefit of the Secured Parties as follows:
1. Defined Terms. As used in this Security Agreement, terms defined in
the Note shall have the meanings assigned to them therein, unless otherwise
defined herein, and the following terms shall have the following meanings:
"Accounts" means all "accounts" and "deposit accounts" as such terms
are defined in the UCC and, to the extent not included within such definitions,
all accounts receivable, book debts and other forms of obligations, whether
arising out of goods sold or services rendered by the Company or from any other
transaction, including, without limitation, any such obligation that might be
characterized as an account or contract right under the UCC, and all the
Company's rights in, to and under all purchase orders or receipts for goods or
services, all of the Company's rights to any goods represented by any of the
foregoing, all moneys due or to become due to the Company under all contracts
for the sale of goods or the performance of services or both by the Company
(whether or not yet earned by performance on the part of the Company or in any
other transaction), now in existence or hereafter occurring, and all collateral
security and guarantees of any kind given by any person with respect to any of
the foregoing.
"Collateral" means all (a) Accounts, (b) Contracts, (c) Equipment and
Licenses, (d) Furniture and Fixtures, (e) General Intangibles, (f) Inventory,
(g) cash and cash accounts, (h) Miscellaneous Items and (i) Proceeds, if any,
but, notwithstanding anything herein to the contrary, shall not include the
Excluded Collateral.
"Agency Agreement" means the Agency Agreement dated as of the date
hereof by and among the Collateral Agent and the Secured Parties, as amended
from time to time.
"Contracts" means the contracts entered into by the Company, including,
without limitation, (a) all rights of the Company to receive moneys due and to
become due to it thereunder or in connection therewith, including, with respect
to an Account, any agreement relating to the terms of performance thereof, (b)
all rights of the Company to damages arising out of, or for, breach or default
in respect thereof and (c) all rights of the Company to perform and to exercise
all remedies thereunder.
"Equipment and Licenses" means all "equipment" as such term is defined
in the UCC and, to the extent not included within such definition, all
machinery, equipment, furnishings, vehicles and supplies (installed and
uninstalled), and any and all additions, substitutions and replacements of any
of the foregoing, wherever located, together with all attachments, components,
parts, equipment and accessories installed or to be installed thereon or affixed
or to be affixed thereto, and all franchises, licenses, permits and operating
rights authorizing or relating to the Company's rights to operate and maintain
its business, whether now owned or hereafter acquired by the Company.
"Excluded Collateral" means the equipment leases and other assets set
forth on Schedule I hereto.
"Furniture and Fixtures" means all of the Company's right, title and
interest in and to all furniture and fixtures in which the Company has an
ownership, leasehold or similar legal interest, whether now owned or hereafter
acquired by the Company.
"General Intangibles" means all "general intangibles" as such term is
defined in the UCC and, to the extent not included within such definition, all
personal property, goodwill, permits, customer lists, Patents, copyrights,
proprietary or confidential information, inventions (whether patented or
patentable or not), technical information, procedures, trademarks, trademark
applications, trade names, trade secrets, designs, payment intangibles (as
defined in the UCC), software (as defined in the UCC), data, databases,
processes, models, drawings, materials and records, industrial or intellectual
property or rights therein, whether under license or otherwise, all right, title
and interest in any of the foregoing, including, without limitation, all rights
to receive payment or property upon or in connection with any transfer of any
license, claims for tax refunds, tax refund amounts and rights of
indemnification, in each case, whether now owned or hereafter acquired by the
Company.
"Inventory" shall mean all "inventory" as such term is defined in the
UCC and to the extent not included within such definition, all inventory,
supplies, merchandise, good and other personal property of whatsoever nature and
kind, and wherever situated, including, without limitation, any inventory held
for lease or sale or that are furnished or are to be furnished under a contract
of service, or that constitute raw materials, components, work in process,
finished goods, goods in transit, materials used or consumed or to be used or
consumed in the Company's business, packing and shipping materials, and all
accretions and accessions thereto, trust receipts and similar documents covering
the same products, whether now owned or hereafter acquired by the Company.
"Investment Property" shall mean all "investment property" as such term
is defined in the UCC.
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"Lien" shall mean, with respect to any asset, any mortgage, deed of
trust, pledge, hypothecation, assignment, security interest, lien, charge or
encumbrance, or preference, priority or other security agreement (including,
without limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of, or agreement to give, any financing statement
under the UCC or comparable law of any jurisdiction); provided that leases to
which the Company is a party as lessor shall not be Liens.
"Miscellaneous Items" shall mean all goods, chattel paper, documents,
instruments, supplies, choses in action, claims, money, cash accounts, deposits,
letter of credit rights, certificates of deposit, stock or share certificates
(including, without limitation, the stock of any subsidiaries of the Company now
existing or hereafter created or acquired) and licenses and other rights in
intellectual property not otherwise included as "collateral" hereunder and
including, without limitation, all other investment property of the Company to
the extent not otherwise included above, including all securities, security
entitlements, securities accounts and commodity contracts, whether now owned or
hereafter acquired by the Company.
"Obligations" shall mean all the unpaid principal amount of and accrued
interest on the Note and all other obligations and liabilities of the Company to
the Collateral Agent and the Secured Parties now existing or hereafter incurred,
under, arising out of or in connection with the Note or any additional
promissory notes issued by the Company to the Secured Parties or any other
Security Document (including, without limitation, this Security Agreement).
"Patents" shall mean all the following: (i) all letters patent of the
United States or any other country, all registrations and records thereof, and
all applications for letters patent of the United States or any other country,
including, without limitation, registrations, recordings and applications in the
United States Patent and Trademark Office or any successor thereto or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, and (ii) all reissues,
continuations, continuations-in-part or extensions thereof.
"Proceeds" shall mean, to the extent not otherwise included as
"Collateral" hereunder, all "proceeds", as such term is defined in the UCC, of
each item of Collateral, and, to the extent not included within such definition,
any and all proceeds of any loss of, damage to or destruction of the above,
whether insured or not insured, and all other proceeds of any sale, lease,
license, exchange or other disposition of any property or interest therein
referred to herein, together with all proceeds of any policies of insurance
covering any item of Collateral, any and all proceeds of any award with respect
to the requisition, confiscation, condemnation, seizure or forfeiture of all or
any part of the property or assets of the Company, any and all proceeds of any
insurance, indemnity, warranty or guarantee payable to the Company from time to
time with respect to any property or assets of the Company, any rebates or
refunds, whether for taxes or otherwise, and any and all other amounts from time
to time paid or payable (in whatever form) under, in connection with or with
respect to any property or assets of the Company, and all proceeds of any such
proceeds, whether now existing or hereafter arising.
"Security Agreement" shall mean this Security Agreement, as the same
may from time to time be amended, modified or supplemented.
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"Security Documents" shall mean, collectively, this Security Agreement
and any other collateral security document executed and delivered in connection
herewith, all as the same may be amended, modified or supplemented from time to
time.
"UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of Delaware; provided, however, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of the Collateral Agent's interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of Delaware, or by the laws of a jurisdiction other than a state
of the United States, the term "UCC" shall mean the Uniform Commercial Code as
in effect in such other jurisdiction or such other laws, as the case may be, for
purposes of the provisions hereof relating to such attachment, perfection or
priority.
2. Grant of Security Interest; Pledge. As collateral security for the
prompt and complete payment and performance when due of all the Obligations and
in order to induce the Secured Parties to purchase the Note, all in accordance
with the terms thereof, the Company hereby assigns and pledges to the Collateral
Agent for the benefit of the Secured Parties, and hereby grants to the
Collateral Agent for the benefit of the Secured Parties, their successors and
assigns, a security interest in all the Company's right, title and interest in,
to and under the Collateral, whether now existing or hereafter from time to time
acquired.
3. Rights of the Secured Parties.
(a) It is expressly agreed by the Company that, anything
herein to the contrary notwithstanding, the Company shall remain liable under
each Contract to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with and pursuant to
the terms and provisions of each such Contract. Neither the Collateral Agent nor
the Secured Parties shall have any obligation or liability under any Contract by
reason of or arising out of this Security Agreement or its assignment to the
Collateral Agent for the benefit of the Secured Parties or the receipt by the
Collateral Agent for the benefit of the Secured Parties of any payment relating
to any Contract pursuant hereto, nor shall the Collateral Agent or the Secured
Parties be required or obligated in any manner to perform or fulfill any of the
obligations of the Company under or pursuant to any Contract, or to make any
payment or to make any inquiry as to the nature or the sufficiency of any
payment received by it or the sufficiency of any performance by any party under
any Contract, or to present or file any claim, or to take any action to collect
or enforce any performance in the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
(b) The Collateral Agent on behalf of the Secured Parties
authorizes the Company to collect the Accounts and the Collateral Agent may
after the occurrence of any Event of Default (as defined in the Note) and while
it is continuing, without cause upon notice, curtail or terminate said authority
at any time. If required by the Collateral Agent at any time after the
occurrence of an Event of Default and while it is continuing, any Proceeds, when
collected by the Company, whether consisting of checks, notes, drafts, bills of
exchange, money orders, commercial paper of any kind whatsoever, or other
documents received in payment of any Account or in payment for any Inventory or
on account of any Contract shall be promptly deposited by the Company in
precisely the form received, except for its endorsement when required, in a
special bank account maintained by the Collateral Agent subject to withdrawal by
the Collateral Agent only, as hereinafter provided, and until so turned over,
shall be deemed to be held in trust by the Company for and as the Secured
Parties' property and shall not be commingled with the Company's other funds.
Such Proceeds, when deposited, shall continue to be collateral security for all
of the Obligations and shall not constitute payment thereof until applied as
hereinafter provided. If an Event of Default shall have occurred and be
continuing under the Note, at any time in the Collateral Agent's election in
accordance with Section 8 hereof, the Collateral Agent shall apply all or any
part of the funds on deposit in said special account on account of the principal
of and/or interest on any of the Obligations, the order and method of such
application to be determined in accordance with this Security Agreement and the
Note and any part of such funds which the Collateral Agent elects not so to
apply and deems not required as collateral security for the Obligations shall be
paid over from time to time by the Collateral Agent to the Company. At the
Collateral Agent's request, the Company shall deliver to the Collateral Agent
copies of all documents evidencing, and relating to, the sale and delivery of
Inventory or the performance of labor or service which created the Accounts,
including, but not limited to, all original orders, invoices and shipping
receipts.
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(c) The Collateral Agent may, but shall have no obligation to,
after the occurrence of an Event of Default and while it is continuing, notify
account debtors and parties to the Contracts that the Accounts and the Contracts
have been assigned to the Collateral Agent for the benefit of the Secured
Parties and that payments shall be made directly to the Collateral Agent or,
upon the request of the Collateral Agent, the Company will so notify such
account debtors and parties to the Contracts. The Collateral Agent may at any
time, but shall have no obligation to, in the name of the Company or in the name
of others, or after the occurrence of an Event of Default and while it is
continuing in its own name or in the name of others communicate with account
debtors and parties to the Contracts in order to verify with them to the
Collateral Agent's satisfaction the existence, amounts and terms of any Accounts
or Contracts.
(d) The Collateral Agent shall have the right, but shall have
no obligation, to make test verifications of the accounts receivable in any
manner and through any medium that it considers advisable, and the Company
agrees to furnish all such assistance and information as the Collateral Agent
may reasonably require in connection therewith. The Company at its expense will
cause independent certified public accountants satisfactory to the Collateral
Agent to prepare in connection with any annual audit of the Company and to
furnish to the Collateral Agent at any time and from time to time (but no more
frequently than once in any six-month period) promptly upon the Collateral
Agent's request the following reports: (i) reconciliation of all accounts
receivable, (ii) an aging of all accounts receivable, (iii) trial balance, and
(iv) a test verification of such accounts receivable as the Collateral Agent may
request.
(e) The security interest granted to the Collateral Agent for
the benefit of the Secured Parties shall continue in full force and effect until
terminated in accordance with Section 15 of the Security Agreement.
4. Representations and Warranties. The Company hereby represents and
warrants that:
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(a) Except for the security interest granted to the Collateral
Agent pursuant to this Security Agreement, the Company is the sole owner of each
item of the Collateral, having good and marketable title thereto, free and clear
of any and all liens, claims or rights of others.
(b) No security agreement, financing statement, equivalent
security or lien instrument or continuation statement covering all or any part
of the Collateral is on file or of record in any public office, except (i) such
as may have been filed by the Company in favor of the Collateral Agent, pursuant
to this Security Agreement, (ii) as permitted to exist under this Security
Agreement with respect to Liens, or (iii) such documents or instruments which
remain on file or of record but which relate to Liens or security interests
which the Company hereby warrants have been fully discharged and terminated.
(c) Upon the filing of appropriate financing statements under
the UCC in the locations and manner specified in Schedule II hereto, this
Security Agreement will constitute a valid and continuing Lien on and security
interest in the Collateral with respect to which a security interest may be
perfected by filing pursuant to the UCC in favor of the Collateral Agent for the
benefit of the Secured Parties, and shall be enforceable as such as against
creditors of and purchasers from the Company. All action of the Company that the
Collateral Agent reasonably requests that is necessary to establish, perfect,
preserve and protect the security interest of the Collateral Agent and its
successors and assigns in each such item of the Collateral with respect to which
a security interest may be perfected by filing pursuant to the UCC will be duly
taken in the locations and manner specified in Schedule II hereto and all fees
and other charges due and payable in connection with such filings will be paid
by the Company.
(d) The Company's chief executive office, and the locations
where the Company's records concerning the Collateral are kept, is in Amesbury,
MA. The Company's jurisdiction of incorporation is the state of Delaware. The
Company's exact legal name is as set forth in the first paragraph of this
Security Agreement.
(e) The amounts represented by the Company to the Collateral
Agent from time to time as owing by each account debtor or by all account
debtors in respect of the accounts receivable will at such time represent
accounts receivable which have arisen from bona fide transactions.
(f) Each Contract and Account is a bona fide, valid and
legally enforceable obligation of the Company and, to the Company's knowledge,
the account debtor in respect thereof. All consents, licenses, approvals or
authorizations of, or resignations or declarations with, any governmental
authority required to be obtained, effected or given in connection with the
execution, delivery and performance of each Contract by each party thereto have
been duly obtained, effected or given, are in full force and effect and do not
subject the scope of such Contract to any material adverse limitation, either
specific or general in nature.
5. Covenants. The Company covenants and agrees with the Collateral
Agent that from and after the date of this Security Agreement and until the
Obligations are fully satisfied:
(a) Further Actions and Documentation.
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(i) The Company will, at the request of the
Collateral Agent, (x) promptly correct any defect, error or omission which may
be discovered in any Security Document, or any other instrument executed in
connection therewith, or evidencing or securing the Note; (y) execute,
acknowledge, deliver, record and file such further instruments (including,
without limitation, further security agreements, assignments, powers, financing
statements and continuation statements and any financing or continuation
statement) deemed advisable by the Collateral Agent, and do such further acts as
may be necessary, desirable or proper to carry out more effectively the purposes
of this Security Agreement and the other Security Documents, and to more fully
identify and subject to the Liens and security interests herein and therein
created and property intended to be covered hereby and thereby, including,
without limitation, any renewals, additions, substitutions, appurtenances,
Proceeds or products of the Collateral; the Company shall pay all costs
connected with any of the foregoing.
(ii) In connection with its obligations under
paragraph (i) of this Section 5(a), the Company will, following a request from
the Collateral Agent therefor, cause to be delivered to the Collateral Agent, on
or before December 1 of the year in which such request is received, an opinion
of counsel to the Company dated no earlier than the November 1 next preceding
such December 1 (provided that the Collateral Agent's request is received
sufficiently in advance of such November 1 as to allow adequate time for counsel
to the Company to prepare such opinion), and stating that, in the opinion of
such counsel, no recording, registration or filing, or re-recording,
re-registration or re-filing of any of the Security Documents or any other
instrument or document (including, without limitation, any financing or
continuation statement), and no payment of any mortgage registration, recording,
filing or other tax or fee or any other action is then necessary in order to
create, preserve, maintain or protect the Liens or security interests created by
the Security Documents and the rights of the Collateral Agent thereunder, in any
jurisdiction or any jurisdiction wherein a Lien on after-acquired property has,
subsequent to the date hereof, arisen; (y) either stating that, in the opinion
of such counsel, no such action will, under existing law, be necessary in the
future for such purposes or, if under existing law any such action will be
necessary in the future for such purposes, specifying such action; and (z)
reciting the details of any such action taken since the date of the previous
opinion of counsel (or, if no such opinion has previously been delivered, the
date of this Security Agreement) delivered to the Secured Party pursuant to this
paragraph.
(b) Maintenance of Records. The Company will keep and maintain
at its own cost and expense satisfactory and complete records of the Collateral,
including, without limitation, a record of all payments received and all credits
granted with respect to the Collateral and all other dealings with the
Collateral. The Company will ▇▇▇▇ its books and records pertaining to the
Collateral to evidence this Security Agreement and the security interests
granted hereby.
(c) Indemnification. In any suit, proceeding or action brought
by the Collateral Agent under any Contract or Account for any sum owing
thereunder, or to enforce any provisions of such Contract or Account, the
Company will save, indemnify, defend and keep the Collateral Agent harmless from
and against all expense (including attorney's fees and disbursements), loss or
damage suffered by reason of any defense, setoff, counterclaim, recoupment or
reduction of liability whatsoever of the obligee thereunder, arising out of or
claimed to have arisen out of a breach by the Company of any obligation
thereunder arising out of or claimed to have arisen out of any other agreement,
indebtedness or liability at any time owing to or in favor of such obligee or
its successors from the Company, and all such obligations of the Company shall
be and remain enforceable against and only against the Company and shall not be
enforceable against the Collateral Agent; provided, that the Company shall have
no liability under this subparagraph (c) with respect to any expense, loss or
damage suffered as a result of the gross negligence or willful misconduct of the
Collateral Agent.
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(d) Compliance with Laws, etc. The Company will comply, in all
material respects, with all applicable laws and regulations and all acts, rules,
regulations, orders, decrees and directions of any governmental authority,
applicable to the Collateral or any part thereof or to the operation of the
Company's business; provided, however, that the Company may contest any act,
regulation, order, decree or direction in any reasonable manner as long as such
action could not (as far as may be reasonably foreseen) adversely effect the
Collateral Agent's rights or the priority of its security interest in the
Collateral.
(e) Payment of Obligations. The Company will pay promptly when
due all taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of its income or profits therefrom, except that no such
charge need be paid if (i) the validity thereof is being contested in good faith
by appropriate proceedings, (ii) the failure to pay or any such proceedings do
not involve any immediate danger of the sale, forfeiture or loss of any material
portion of the Collateral or any interest therein, and (ii) such charge is
adequately reserved against in accordance with generally accepted accounting
principles.
(f) Limitation on Liens on Collateral. The Company will not
create, permit or suffer to exist, and will defend the Collateral against and
take such other action as is necessary to remove, any Lien, claim or right in or
to the Collateral other than Liens pursuant to this Security Agreement, and will
defend the right, title and interest of the Collateral Agent in and to any of
the Company's rights in and to the Collateral and in and to the Proceeds and
products thereof against the claims and demands of all persons or entities
whomsoever.
(g) Limitation on Dispositions of Collateral. The Company will
not sell, assign, transfer, lease or otherwise dispose of any of the Inventory,
or attempt, offer or contract to do so except for sales of Inventory in the
ordinary course of its business. The Company will not do any act, or omit to do
any act, whereby any Patent may become abandoned or dedicated, if such act or
omission could reasonably be expected to have a material adverse effect on the
financial condition and business operations of the Company.
(h) Further Identification of Collateral. The Company will
furnish to the Collateral Agent from time to time statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as the Collateral Agent may reasonably request,
all in reasonable detail.
(i) Notices. The Company will advise the Collateral Agent
promptly, in reasonable detail, (i) of any Lien or claim made or asserted
against any of the Collateral and known to the Company, (ii) of any material
change in the composition of the Collateral, and (iii) of any occurrence of any
event which would have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereunder. The Company also will
notify the Collateral Agent promptly upon becoming aware of any default or event
of default, or any state of facts which, but for the passage of time or notice
would constitute a material default, poses a risk of material default or
material event of default, under any Contract, which notice shall set forth the
details of any such default, event of default or state of facts, the action that
the Company is taking or proposing to take with respect thereto and the
applicable grace period for curing any such default or event of default under
such Contract.
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(j) Right of Inspection. The Collateral Agent shall at all
times during normal business hours and upon reasonable notice have full and free
access to all the books, correspondence and records of the Company relating to
the Collateral (but excluding documents or information subject to
attorney-client privilege and information the disclosure of which is prohibited
by a bona find confidentiality agreement), and the Collateral Agent or its
representatives may examine the same, take extracts therefrom and make
photocopies thereof, and the Company agrees to render to the Collateral Agent,
at the Company's cost and expense, such clerical and other assistance as may be
reasonably requested with regard thereto. Subject to compliance with the
Company's contractual obligations with respect to Inventory located on
properties not owned or leased by the Company, the Collateral Agent and its
representatives shall at all times during normal business hours and upon
reasonable notice, also have the right to enter into and upon any premises where
any of the Inventory is located for the purpose of inspecting the same,
observing its use or otherwise protecting its interest therein.
(k) Change of Name; Location of Collateral; Records; Place of
Business. The Company agrees to notify the Collateral Agent no less than 30 days
in advance in writing of any change (i) in its corporate name or in any trade
name used to identify it in the conduct of its business or in the ownership of
its properties, (ii) in the state in which it is organized, (iii) in its
identity or corporate structure, or any other action that would adversely affect
the security interest granted hereunder. The Company agrees to reasonably assist
the Collateral Agent in the event the Company effects or permits any change
referred to in the preceding sentence with all filings to be made under the UCC
or otherwise that are required in order for the Collateral Agent as collateral
agent for the Purchasers to continue at all times to have a valid, legal and
perfected continuing security interest of first priority in all the Collateral.
The Company agrees promptly to notify the Collateral Agent if any material
portion of the Collateral owned or held by the Company is damaged or destroyed.
(l) Collateral Agent Fees. The Company shall pay (or reimburse
the Collateral Agent for) all reasonable expenses of the Collateral Agent under
this Security Agreement or the Agency Agreement among the Collateral Agent and
the Secured Parties, including without limitation, the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and counsel
as the Collateral Agent may employ in connection with the negotiation and
execution of this Security Agreement and the Agency Agreement and the exercise
and performance of its rights and duties hereunder and thereunder.
(m) Possession. The Company shall have possession of the
Collateral, except where expressly otherwise provided in this Security
Agreement. Where Collateral is in the possession of a third party, and the
Collateral Agent so requests, the Company will join with the Collateral Agent in
notifying the third party of the Collateral Agent's security interest therein
and using commercially reasonable efforts to obtain an acknowledgement from the
third party that is holding the Collateral for the benefit of the Collateral
Agent.
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(n) Control. If the Collateral Agent so requests, the Company
will cooperate with the Collateral Agent in obtaining control (including
"Control" as contemplated by Section 9-312 of the UCC) with respect to
Collateral consisting of Deposit Accounts, Investment Property, Letter-of-credit
rights and Electronic chattel paper.
(o) Marking of Chattel Paper. The Company will not create any
Chattel Paper (as such term is defined in the UCC) without placing a legend on
the Chattel Paper acceptable to Collateral Agent indicating that the Collateral
Agent, on behalf of the Purchasers, has a security interest in the Chattel
Paper.
6. The Collateral Agent's Appointment as Attorney-in-Fact.
(a) The Company hereby irrevocably constitutes and appoints
the Collateral Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority (but not the duty) in the place and stead of the Company and
in the name of the Company or in their own names, from time to time in the
Collateral Agent's discretion, for the purpose of carrying out the terms of this
Security Agreement, to take any and all appropriate action and to execute any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Security Agreement and hereby gives the
Collateral Agent the power, and right, (but not the duty) on behalf of the
Company to do the following:
(i) upon the occurrence of an Event of Default and
while it is continuing, to ask, demand, collect, receive and give acquittances
and receipt for any and all moneys due and to become due under any Contract or
Account and, in the name of the Company or its own name or otherwise, to take
possession of and endorse and collect any checks, drafts, notes, acceptances or
other instruments for the payment of moneys due under any Contract or Account
and to file any claim or to take any other action or proceeding in any court of
law or equity or otherwise deemed appropriate by the Collateral Agent for the
purpose of collecting any and all such moneys due under any Contract or Account
whenever payable;
(ii) to pay or discharge any taxes, Liens, security
interests or other encumbrances levied or placed on or threatened against the
Collateral (other than the Liens created hereunder), to effect any repairs or
any insurance called for by the terms of this Security Agreement or the Note and
to pay all or any part of the premiums therefor and the costs thereof, if, in
any such case, either (A) the Company shall fail to make such payment or effect
such discharge, repair or insurance within five business days after the
Collateral Agent gives notice to the Company therefor, or (B) the Collateral
Agent reasonably believes that such action is necessary to protect the value of
the Collateral, its security interest herein or the perfection or priority of
such security interest; and
10
(iii) upon the occurrence of an Event of Default and
while it is continuing, and in each case in compliance with applicable law (A)
to direct any party liable for any payment under any of the Contracts or
Accounts to make payment of any and all moneys due and to become due thereunder
directly to the Collateral Agent or as the Collateral Agent shall direct; (B) to
receive payment of and receipt for any and all moneys, claims and other amounts
due and to become due at any time in respect of or arising out of any
Collateral; (C) to sign and endorse any invoices, freight or express bills,
bills of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts and other
documents relating to the Collateral; (D) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any part thereof and to enforce any of
the rights in respect of any Collateral; (E) to defend any suit, action or
proceeding brought against the Company with respect to any Collateral; (F) to
settle, compromise or adjust any suit, action or proceeding described above and,
in connection therewith, to give such discharges or releases as the Collateral
Agent may deem appropriate; (G) generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral as fully
and completely as though the Collateral Agent was the absolute owner thereof for
all purposes, and (H) to do, at the Collateral Agent's option and the Company's
expense, at any time, or from time to time, all acts and things which the
Collateral Agent deems necessary to protect, preserve or realize upon the
Collateral or the Collateral Agent's security interest therein, in order to
effect the intent of this Security Agreement, all as fully and effectively as
the Company might do.
The Company hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue thereof. The Collateral Agent shall provide prompt
written notice to the Company of any actions by the Collateral Agent taken in
connection with the foregoing power of attorney. This power of attorney is a
power coupled with an interest and shall be irrevocable until terminated in
accordance with Section 15 thereof.
(b) The powers conferred on the Collateral Agent hereunder are
solely to protect its interest in the Collateral and shall not impose any duty
upon the Collateral Agent to exercise any such powers. There are no implied
duties upon the Collateral Agent hereunder and the Collateral Agent shall have
only those duties which are expressly provided for herein. The collateral Agent
shall be accountable only for amounts that it actually receives as a result of
the exercise of such power and neither it nor any of its officers, directors,
employees or Agents shall be responsible to the Company, the Secured Parties, or
any other person for any act or failure to act, except for its gross negligence
or willful misconduct.
(c) The Company also authorizes the Collateral Agent, after
the occurrence of an Event of Default and while it is continuing, (i) to
communicate in its own name with any account debtor or any part to any Contract
with regard to the assignment of the Accounts or Contracts hereunder and other
matters relating thereto and (ii) at any time and from time to time to execute
in connection with the sale provided for in paragraph (b) of Section 8 of this
Security Agreement, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
7. Performance by the Collateral Agent of the Company's Obligation. If
the Company fails to perform or comply with any of its agreements contained here
and the Collateral Agent, as provided for by the terms of this Security
Agreement, shall itself perform or comply, or otherwise cause performance or
compliance, with such agreement, the expenses of the Collateral Agent reasonably
incurred in connection with such performance or compliance, (including the fees
an disbursements of its counsel, agents and representatives) together with
interest thereon at the rate provided for in respect of the Note, shall be
payable by the Company to the Collateral Agent on demand and shall constitute
obligations secured hereby.
11
8. Remedies, Rights Upon Default.
(a) If an Event of Default shall occur under the Note and be
continuing:
(i) All payments received by the Company under or in
connection with any of the
Collateral shall be held by the Company in trust for the Collateral Agent, shall
be segregated from other funds of the Company and shall forthwith upon receipt
by the Company be turned over to the Collateral Agent, in the same form as
received by the Company (duly endorsed by the Company to the Collateral Agent,
if required); and
(ii) Any and all such payments so received by the
Collateral Agent (whether from
the Company or otherwise) may, in the sole discretion of the Collateral Agent,
be held by the Collateral Agent as collateral security, for/or then or at any
time thereafter applied in whole or in part by the Collateral Agent against all
or any part of the Obligations. Any balance of such payments held by the
Collateral Agent and remaining after payment in full of all the Obligations
shall be paid over to the Company or to whomsoever may be lawfully entitled to
receive the same.
(b) If any Event of Default shall occur and be continuing:
(i) The Collateral Agent may exercise in addition to
all other rights and remedies granted to it in this Security Agreement, and in
any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the UCC; and
(ii) Without limiting the generality of the
foregoing, the Company expressly agrees, that, subject to applicable law, in any
such event the Collateral Agent, without demand of performance or other demand
or notice of any kind (except the notice specified below of time and place of
public or private sale) to or upon the Company (all and each of which demands
and/or notices are hereby expressly waived), may (but shall be under no duty to)
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give an option or
options to purchase, or sell or otherwise dispose of and deliver said Collateral
(or contract to do so) or any part hereof, in one or more parcels at public or
private sale or sales, at any exchange broker's board or at any of the
Collateral Agent's offices or elsewhere at such prices as the Collateral Agent
may deem appropriate, for cash or on credit or for future delivery without
assumption of any credit risk, in all cases in a commercially reasonable manner
and in compliance with applicable law. The Collateral Agent shall have the right
(but not the duty) upon any such public sale or sales to purchase the whole or
any part of said Collateral so sold, subject to any right to equity of
redemption in the Company. The Company further agrees, at the Collateral Agent's
request, to assemble the Collateral, make it available to the Collateral Agent
at places which the Collateral Agent may reasonable select, whether at the
Company's premises or elsewhere. The Collateral Agent shall apply the Proceeds
of any such collection, recovery, receipt, appropriation, realization or sale,
to the payment of the Obligations, allocated among the Secured Parties in
proportion as nearly as practicable to the respective outstanding principal
amounts of Note held by such Secured Parties (with first priority to repayment
of any amounts owing to the Collateral Agent), the Company remaining liable for
any deficiency remaining unpaid after such application. To the extent permitted
by applicable law, and, provided the Collateral Agent acts in a commercially
reasonable manner as required by applicable law, the Company waives all claims,
damages and demands against the Collateral Agent arising out of the
repossession, retention or sale of the Collateral. The Company agrees that the
Collateral Agent need not give more than 15 days' notice (which notification
shall be deemed given when mailed, postage prepaid, addressed to the Company at
its address as set forth in Section 10 hereof) of the time and place of any
public sale or of the time after which a private sale may take place and that
such notice is reasonable notification of such matters. If the Proceeds of any
sale or disposition of the Collateral are insufficient to pay all amounts to
which the Collateral Agent is entitled, the Company shall be liable for the fees
of any attorneys or Agents employed by the Collateral Agent to collect such
deficiency.
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(c) The Company also agrees to pay on demand all fees, costs
and expenses of the Collateral Agent, including all reasonable attorneys' fees,
incurred with respect to the Collection of any of the Obligations and the
enforcement of any of their respect rights hereunder, including, without
limitation, all fees, costs and expenses incurred in connection with any advice,
suits, appeals, insolvency or other proceedings under the federal bankruptcy
code or otherwise.
(d) The Company hereby waives presentment, demand, protest or
any notice (to the extent permitted by applicable law and not otherwise
expressly contemplated by this Security Agreement) of any kind in connection
with this Security Agreement or any Collateral.
9. Limitation on the Collateral Agent's Duty in Respect of Collateral.
Beyond the safe custody thereof in accordance with commercially
reasonable standards, the Collateral Agent shall not have any duty as to any
Collateral in its possession or control or in the possession or control of any
of its agents or nominees or any income thereof or as to the preservation of
rights against prior parties or any other rights pertaining thereto.
10. Notices. Any notice herein required or permitted to be given shall
be given by depositing the same in the United States first class mail, postage
prepaid, or hand delivered or transmitted by facsimile, in any case with a copy
sent by overnight courier service, and addressed to the parties as follows:
To the Company:
Titan PCB East, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with copies to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
13
To the Collateral Agent:
Personal Resources Management, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
or to such other place or places as any of the parties shall designate by
written notice to other courts.
11. Severability. Any provision of this Security Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction if to so do would not
deprive a party of the substantial benefit of its bargain.
12. No Waiver; Cumulative Remedies. The Collateral Agent shall not by
any act, delay, omission or otherwise be deemed to have waived any of its rights
or remedies hereunder and no waiver shall be valid unless made conspicuously in
writing, signed by the Collateral Agent, and then only to the extent therein set
forth. A waiver by the Collateral Agent of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Collateral Agent would otherwise have had on any future occasion. No failure to
exercise, or any delay in exercising on the part of the Collateral Agent, any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or future exercise thereof or the exercise of any right power
or privilege. The rights and remedies hereunder provided are cumulative and may
be exercise singly or concurrently and are not exclusive of any rights and
remedies provided by law. None of the terms or provisions of this Security
Agreement may be waived, released, altered, modified or amended except by an
agreement in writing, duly executed by the Company and the Collateral Agent.
13. Successors and Assigns; Governing Law. This Security Agreement and
all obligations of the Company hereunder shall be binding upon the successors
and assigns of the Company, and shall, together with the rights and remedies of
the Collateral Agent hereunder, inure to the benefit of the Collateral Agent,
the Secured Parties and their respective successors and assigns, including all
holders from time to time of any Note. This Security Agreement shall be governed
by and be construed and interpreted in accordance with, the laws of the State of
New York without regard to principles of conflicts of laws. The Company hereby
agrees that any suit to enforce any provisions of this Security Agreement or
arising out of or based upon this Security Agreement may be brought in any state
or federal court located in the State of New York, City of New York.
14
14. Further Indemnification. The Company agrees to pay, defend and save
the Collateral Agent harmless from any and all liabilities with respect to, or
resulting from any delay in paying, any and all excise, sale or other taxes
which may be payable or determined to be payable with respect to any of the
Collateral or in connection with any or future transactions contemplated by this
Security Agreement.
15. Term of Security Agreement. The term of this Security Agreement
shall commence on the date hereof and this Security Agreement shall continue in
full force and effect and be binding upon the Company until all of the
Obligations have been fully paid and performed and such payment and performance
has been acknowledged in writing by the Collateral Agent, whereupon this
Security Agreement (including without limitation the provisions of Section 6
hereof) shall terminate and the Collateral Agent shall upon the Company's
request execute such termination statements under the UCC and other instruments
as may be necessary or appropriate to reflect the termination of the security
interest granted hereunder.
IN WITNESS WHEREOF, the Company and the Collateral Agent have
caused this Security Agreement to be executed by their duly authorized officers
as of the date first set forth above.
TITAN PCB EAST, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
PERSONAL RESOURCES MANAGEMENT, INC.
As Collateral Agent for the Benefit
of the Secured Parties
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
15
SCHEDULE I
Excluded Collateral
1. The following collateral covered by Banc One Leasing Financing Statement
One MP-940 Moving Probe Tester, Serial # 70727600, 26" x 31" Panel,
24" x 30" Test Area, 4 Probe Units w/ 4 CCD
Cameras, Pneumatic Clamp and Servo Driven Tension SYS;
One High Speed Phase Difference Measurement (PDM) Included;
One Automatic Image Processing For PCB Alignment and Deskewing Included;
One MP-940 Controller-300 MGZ Pentium Workstation Included;
One MCM High Speed Low Mass Probe Units;
One Fixmaster to Probemaster Single User Upgrade, Ver. 1.27;
One Cammaster for Windows Ver. 5.0;
One Verify! for Windows Beta Ver. 2.33;
One Fixmaster for Windows Release Ver. 5.0 End User ID: Eastern Manuf. Corp.
3635 AFVS-QVS Automated Verification
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Server, 2 EA Barcode Printers (Trace Tester), 2 Ea Scan Wands,
QVS Site License for 2;
One 4 Ea. Color Camera Upgrades End User ID Easter Manuf. Corp. #4687
One Verify! Single User License Ver. 2.4 ;
One Verify! For Windows Beta Ver. 2.33 End User ID Eastern Manuf. Corp. #4686;
One 500 Volt Upgrade Electronics and Softward
2. The Company's option to acquire certain real estate - proceeds from any sale
thereof not excluded.
16
SCHEDULE II
Filings
1. Delaware - Form UCC-1
17
Exhibit A
Secured Parties
Name of Secured Party Principal Amount of Note
--------------------- ------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ $50,000.00
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $60,000.00
▇▇▇▇▇▇▇ F Mordando Trustee, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ Trustee u/w/o $50,000.00
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ $50,000.00
▇▇▇▇ ▇▇▇▇▇▇ $30,000.00
▇▇▇▇▇ ▇▇▇▇▇▇ $150,000.00
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - $100,000.00
▇▇▇▇ ▇▇▇▇ $50,000
▇▇▇▇ ▇▇▇▇▇ $100,000.00
Total $64,000.00
18