Exhibit 10.2
SECURITY AGREEMENT
ALL PERSONAL PROPERTY AND FIXTURES
BORROWER GRANTOR
This Agreement is executed and delivered at Dayton, Ohio as of this 28th day of
December, 2001 by MODERN TECHNOLOGIES CORP. ("Grantor"), whose mailing address
is 4032Linden Ave. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, to NATIONAL CITY BANK as agent (pursuant
to a Credit Agreement dated December 28, 2001, a national banking association
having a banking office at ▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corp.
Banking, Locator No. 21-2200.
1. Grant of Interest. To secure the prompt payment in full of the Subject
Debt as and when the respective parts thereof become due, whether by lapse of
time, by acceleration of maturity, or otherwise, Grantor hereby grants, assigns
and pledges to Bank a security interest in all of Grantor's right, title and
interest in the Collateral whether now existing or hereafter arising, including,
without limitation, the right or power to transfer an interest in the
Collateral. As to Collateral not now in existence or in which Grantor does not
presently have any rights, Bank's security interest shall automatically attach
thereto immediately when the same comes into existence and Grantor acquires any
right, title or interest therein, including, without limitation, the right or
power to transfer an interest therein, in each case without the making or doing
of any further or other act or thing. "Collateral" means, collectively, (a) all
of the personal property of Grantor (except Consumer Goods) wheresoever located,
whether now existing or hereafter arising, including, without limitation, all
Accounts, all Chattel Paper, all Commercial Tort Claims described and
identified in Schedule A, if any, to this Agreement (the "Supplemental
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Schedule"), all Deposit Accounts, all Documents, all Equipment, including,
without limitation, any Equipment described in the Supplemental Schedule, if
any, all Fixtures, including, without limitation, those described in the
Supplemental Schedule, if any, all General Intangibles, all Goods, all
Instruments, all notes receivable (including from affiliates of Borrower), all
Inventory, all Investment Property, all Letter-of-Credit Rights and all
Supporting Obligations; (b) all property (except any Consumer Goods), tangible
or intangible, in which Grantor now has or hereafter acquires any rights and
which now or hereafter is in Bank's control (by document of title or otherwise)
or possession or is owed by Bank to Grantor, including, without limitation, the
cash collateral account described in subsection 6.5; (c) all replacements of,
substitutions for and additions and Accessions to all or any part of the
property hereinbefore described; (d) all Products of all or any part of the
goods hereinbefore described; and (e) all Proceeds, including, without
limitation, Cash Proceeds and Non-Cash Proceeds of all or any part of the
property, including, without limitation, Products, hereinbefore described.
2. Definitions; UCC Cross References. As used in this Agreement, except where
the context clearly requires otherwise, "Accessions" means Goods that are
physically united with other Goods in such a manner that the identity of the
original Goods is not lost; "Account" means (a) a right to payment of a monetary
obligation, whether or not earned by performance, (i) for property that has been
or is to be sold, leased, licensed, assigned, or otherwise disposed of, (ii) for
services rendered or to be rendered, (iii) for a policy of
insurance issued or to be issued, including Health-Care-Insurance Receivables,
(iv) for a secondary obligation incurred or to be incurred, (v) for energy
provided or to be provided, (vi) for the use or hire of a vessel under a charter
or other contract, (vii) arising out of the use of a credit or charge card or
information contained on or for use with the card, or (viii) as winnings in a
lottery or other game of chance operated or sponsored by a state, governmental
unit of a state or Person licensed or authorized to operate the game by a state
or governmental unit of a state and (b) does not include (i) a right to payment
evidenced by Chattel Paper or an Instrument, (ii) Commercial Tort Claims, (iii)
Deposit Accounts, (iv) Investment Property, (v) Letter-of-Credit Rights or
Letters of Credit, or (vi) rights to payment for money or funds advanced or
sold, other than rights arising out of the use of a credit or charge card or
information contained on or for use with the card; "Account Debtor" means a
Person obligated on an Account, Chattel Paper or General Intangible and does not
include a Person obligated to pay a negotiable instrument, even if the
instrument constitutes part of Chattel Paper; "Affiliate" means, when used with
reference to any Person (the "subject"), a Person that is in control of, under
the control of, or under common control with, the subject, the term "control"
meaning the possession, directly or indirectly, of the power to direct the
management or policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise; "Agreement" means this Security Agreement
(including, without limitation, each amendment, supplement, replacement, or
renewal, if any); "Authenticate" and "Authenticated" mean to (a) sign, or (b)
execute or otherwise adopt a symbol, or encrypt or similarly process a Record in
whole or in part, with the present intent of the authenticating Person to
identify the Person and adopt or accept a Record; "Bank" means National City
Bank for itself and as agent for National City Bank; "Bank Debt" means,
collectively, all Debt to Bank, whether incurred directly to Bank or acquired by
it by purchase, pledge, or otherwise, and whether participated to or from Bank
in whole or in part; "Cash Proceeds" means Proceeds that are money, checks,
Deposit Accounts, or the like; "Chattel Paper" means a Record or Records that
evidence both a monetary obligation and a security interest in specific goods, a
security interest in specific goods and software used in the goods, a lease of
specific goods, or a lease of specific goods and license of software used in the
goods. In this definition, "monetary obligation" means a monetary obligation
secured by the goods or owed under a lease of the goods and includes a monetary
obligation with respect to software used in the goods and does not include (a)
charters or other contracts involving the use or hire of a vessel or (b) Records
that evidence a right to payment arising out of the use of a credit or charge
card or information contained on or for use with the card; "Commitment" means
any enforceable obligation, whether created orally or in writing, whether
arising by contract, estoppel, or otherwise, whether conditional or
unconditional on the part of Bank to extend credit to or for the account of any
Person; "Debt" means, collectively, (a) all obligations of the Person or Persons
in question, including, without limitation, every such obligation whether owing
by one such Person alone or with one or more Persons in a joint, several, or
joint and several capacity, whether now owing or hereafter arising, whether
owing absolutely or contingently, whether created by loan, overdraft, guaranty
of payment, or other contract, or by quasi-contract, tort, statute, other
operation of law, or otherwise and (b) any and all obligations and liabilities
of the Person or Persons in question to National City Bank, an Affiliate of
Bank, whether absolute or contingent, whether now existing or hereafter created,
arising evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor)
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under (i) any agreement, device or arrangement designed to protect the Person
or Persons in question from fluctuations of interest rates, exchange rates or
forward rates, including, but not limited to, dollar-denominated or
cross-currency exchange agreements, forward currency exchange agreements,
interest rate caps, collars or floors, forward rate currency or interest rate
options, puts, warrants, swaps, swaptions, U.S. Treasury locks and U.S. Treasury
options, (ii) any other interest rate hedging transactions, such as, but not
limited to, managing the Person's or Persons' in question interest rate risk
associated with any pending or potential capital market transactions such as
fixed rate bond issues, and (iii) any and all cancellations, buybacks,
reversals, terminations or assignments of any of the foregoing; "Default" means
(a) the nonpayment of the Subject Debt or any part of it when due or (b) the
occurrence or existence of any event, condition, or other thing (other than any
event, condition, or other thing which would constitute a "Default" pursuant to
the next preceding clause (a)) which gives (or which with the lapse of any
applicable grace period, the giving of notice, or both would give) Bank the
right to accelerate or which automatically accelerates the maturity of any of
the Subject Debt; "Deposit Account" means a demand, time, savings, passbook or
similar account maintained with a bank and does not include Investment Property
or accounts evidenced by an Instrument; "Document" means (a) a document that
purports to be issued by or addressed to a bailee and that purports to cover
goods that are in the bailee's possession that are either identified or fungible
portions to an identified mass, and includes a ▇▇▇▇ of lading, dock warrant,
dock receipt, warehouse receipt, or order for the delivery of goods, and any
other document that in the regular course of business or financing is treated as
adequately evidencing that the Person in possession of it is entitled to
receive, hold, and dispose of the document and the goods it covers or (b) a
receipt issued by the owner of goods including distilled spirits or agricultural
commodities that are stored under a statute requiring a bond against withdrawal
or a license for the issuance of receipts in the nature of a warehouse receipt;
"Equipment" means Goods other than Inventory, Farm Products, or Consumer Goods;
"General Intangible" means any personal property, including things in action,
other than Accounts, Chattel Paper, Commercial Tort Claims, Deposit Accounts,
Documents, Goods, Instruments, Investment Property, Letter-of-Credit Rights,
Letters of Credit, money and oil, gas, or other minerals before extraction and
includes Payment Intangibles and Software; "Goods" means all things that are
movable when a security interest attaches and includes (a) Fixtures, (b)
standing timber that is to be cut and removed under a conveyance or contract for
sale, (c) the unborn young of animals, (d) crops grown, growing, or to be grown,
even if the crops are produced on trees, vines, or bushes, (e) manufactured
homes and (f) a computer program embedded in goods and any supporting
information provided in connection with a transaction relating to the program if
(i) the program is associated with the goods in such a manner that it
customarily is considered part of the goods, or (ii) by becoming the owner of
the goods, a Person acquires a right to use the program in connection with the
goods. The term does not include a computer program embedded in goods that
consists solely of the medium in which the program is embedded, Accounts,
Chattel Paper, Commercial Tort Claims, Deposit Accounts, Documents, General
Intangibles, Instruments, Investment Property, Letter-of-Credit Rights, Letters
of Credit, money or oil, gas, or other minerals before extraction;
"Health-Care-Insurance Receivable" means an interest in or claim under a policy
of insurance which is a right to payment of a monetary obligation for
health-care-goods or services provided; "Instrument" means a negotiable
instrument or any other writing that evidences a right to the payment of a
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monetary obligation, is not itself a security agreement or lease, and is of a
type that in the ordinary course of business is transferred by delivery with any
necessary indorsement or assignment but does not include (a) Investment
Property, (b) Letters of Credit, or (c) writings that evidence a right to
payment arising out of the use of a credit or charge card or information
contained on or for use with the card; "Inventory" means Goods, other than Farm
Products, which: (a) are leased by a Person as lessor, (b) are held by a Person
for sale or lease or to be furnished under a contract of service, (c) are
furnished by a Person under a contract of service, or (d) consist of raw
materials, work in process, or materials used or consumed in a business;
"Investment Property" means a security, whether certificated or uncertificated,
security entitlement, securities account, commodity contract, or commodity
account; "Letter-of-Credit Right" means a right to payment or performance under
a Letter of Credit, whether or not the beneficiary has demanded or is at the
time entitled to demand payment or performance and does not include the right
of a beneficiary to demand payment or performance under a Letter of Credit;
"Non-Cash Proceeds" means Proceeds other than Cash Proceeds; "Obligor" means any
Person who, or any of whose property, shall at the time in question be obligated
in respect of all or any part of the Bank Debt of Grantor and (in addition to
Grantor) includes, without limitation, co-makers, indorsers, guarantors,
pledgors, hypothecators, mortgagors, and any other Person who agrees,
conditionally or otherwise, to assure such other Obligor's creditors or any of
them against loss; "Payment Intangible" means a General Intangible under which
the Account Debtor's principal obligation is a monetary obligation; "Person"
means an individual or entity of any kind, including, without limitation, any
association, company, cooperative, corporation, partnership, trust, governmental
body, or any other form or kind of entity; "Prime Rate" means the fluctuating
rate per annum which is publicly announced from time to time by Bank as being
its "prime rate" or "base rate" thereafter in effect, with each change in the
Prime Rate automatically, immediately, and without notice changing the Prime
Rate thereafter applicable hereunder, it being acknowledged that the Prime Rate
is not necessarily the lowest rate of interest then available from Bank on
fluctuating-rate loans; "Proceeds" means (a) whatever is acquired upon the sale,
lease, license, exchange, or other disposition of collateral, (b) whatever is
collected on, or distributed on account of, collateral, (c) rights arising out
of the collateral, (d) to the extent of the value of collateral, claims arising
out of the loss, nonconformity, or interference with the use of, defects or
infringement of rights in, or damage to, the collateral, or (e) to the extent of
the value of the collateral and to the extent payable to Grantor or Bank,
insurance payable by reason of the loss or nonconformity of, defects or
infringement of rights in, or damage to, the collateral; "Products" means
property directly or indirectly resulting from any manufacturing, processing,
assembling, or commingling of any goods; "Record" means information that is
inscribed on a tangible medium or which is stored in an electronic or other
medium and is retrievable in perceivable form; "Related Writing" means this
Agreement and any indenture, note, guaranty, assignment, mortgage, security
agreement, subordination agreement, notice, financial statement, legal opinion,
certificate, or other writing of any kind pursuant to which all or any part of
the Bank Debt of Grantor is issued, which evidences or secures all or any part
of the Bank Debt of Grantor, which governs the relative rights and priorities of
Bank and one or more other Persons to payments made by, or the property of, any
Obligor, which is delivered to Bank pursuant to another such writing or which is
otherwise delivered to Bank by or on behalf of any Person (or any employee,
officer, auditor, counsel, or agent of any Person) in respect of or in
connection with all or any part of
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the Bank Debt of Grantor; "Software" means a computer program and any supporting
information provided in connection with a transaction relating to the program
and does not include a computer program that is included in the definition of
Goods; "Subject Debt" means, collectively, all Bank Debt created or incurred by
Grantor; "UCC" means the Uniform Commercial Code as is in effect on the date of
this Agreement in the jurisdiction in which Bank's banking office is located and
as may be amended from time to time; and the foregoing definitions shall be
applicable to the respective plurals of the foregoing defined terms. To the
extent any capitalized term used but not defined in this Agreement is defined in
the UCC, such capitalized term shall have the meaning ascribed to it in the UCC.
3. Representations and Warranties. Grantor represents and warrants to Bank as
follows:
3.1 Existence. Grantor is a corporation organized and in good standing
under Ohio law.
3.2 Taxpayer and Organizational Identification Numbers and Legal Name.
Grantor's social security or federal taxpayer identification number is
▇▇-▇▇▇▇▇▇▇ and its state organizational or registration identification number,
if any, is 665947. Grantor's exact legal name is as is set forth above in the
first paragraph of this Agreement.
3.3 Authority. Each Person, if any, executing and delivering this Agreement
on behalf of Grantor or any other Person has been duly authorized to do so, and
this Agreement is valid and enforceable against Grantor in accordance with its
terms.
3.4 Location of Chief Executive Office and Collateral. Grantor's chief
executive office is located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇. Grantor
keeps all of Grantor's records relating to the Collateral at Grantor's chief
executive office. All Goods in which Grantor has any rights are, and for the
past five (5) years have been, kept at Grantor's chief executive office and at
the other locations, if any, described in the Supplemental Schedule, if any, to
this Agreement, and, with respect to certain Goods, at such other locations to
which Grantor is entitled to move those Goods pursuant to subsection 5.1.
3.5 Ownership. Grantor owns all of the Collateral described in the most
recent financial statements furnished by Grantor to Bank or in which Grantor has
thereafter acquired any rights absolutely free from any adverse claim,
assignment, attachment, lease, license, mortgage, security interest, or other
lien, and free from any other claim, right, or interest of any kind, except for
any in favor of or consented to by Bank. No assignment, financing statement, or
other Record (except any evidencing any lien or interest expressly permitted by
this Agreement) describing the Collateral or any part thereof is on file in any
public office.
4. General Provisions Applicable to All Collateral. The provisions of this
section 4 shall apply with respect to all types of Collateral:
4.1 Further Assurance; Specific Authorizations. Grantor will, at Grantor's
expense, make and do all such acts and things (including, without limitation,
the delivery to
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Bank of any Chattel Paper, Document, Instrument, or other Record of any kind the
possession of which perfects a security interest therein) as Bank may from time
to time require for the better evidencing, perfection, protection, or validation
of, or realization of the benefits of, its security interest. Without limiting
the generality of the foregoing, Grantor will, at Grantor's expense, upon each
request of Bank, (a) file, and hereby authorizes Bank to file, from time to time
such financing statements and other Records in such public offices as Bank may
require or deem advisable containing (i) a collateral indication extending to
all of Grantor's personal property and assets or such other collateral
indications as Bank may require or deem advisable, (ii) an indication of any
Agricultural Liens or other statutory liens held by Bank, (iii) Grantor's
federal taxpayer identification number, social security number and/or state
organizational or registration number, if any, and any other identifying
information as Bank may require or deem advisable, or (iv) any other information
as Bank may require or deem advisable, (b) place a legend on all Chattel Paper
created by Grantor indicating that Bank has a security interest in the Chattel
Paper, (c) comply with every other requirement deemed necessary by Bank for the
perfection of its security interest including, without limitation, (i)
cooperating with Bank in obtaining Control of all Deposit Accounts, Investment
Property, and Letter-of-Credit Rights, and in connection with such
Letter-of-Credit Rights obtain the consent of the issuer of such Letter of
Credit, and (ii) notifying all Persons in possession of any Collateral of Bank's
security interests in such property and obtaining an acknowledgement from such
Persons that the Collateral is being held for the benefit of Bank, (d) execute
and deliver such affidavits, assignments, financing statements, indorsements of
specific items of Collateral, mortgages, powers of attorney, security
agreements, or other Records, as Bank may from time to time require, each in
form and substance satisfactory to Bank, and (e) cause all applicable
Certificates of Title (in the case of any motor vehicle or other chattels in
which Bank has been granted a security interest pursuant to this Agreement and
which is subject to any certificate of title law) to be duly noted with Bank's
security interest and to be deposited with Bank. Without diminishing or
impairing any obligation of Grantor under this Agreement, a carbon,
photographic, electronic or other reproduction of this Agreement shall be
sufficient as a financing statement.
4.2 Notice. Grantor will give Bank:
(a) not less than thirty (30) days' prior written notice of any
change in Grantor's name, in its type of organization, in its organizational
identification number, in its state of incorporation, formation, or
registration, in the location of its chief executive office or principal
residence or in the location at which it keeps any records relating to the
Collateral or any part thereof, or of any other change in circumstances which
affects or may affect the continuing efficacy of any financing statement filed
in respect of Bank's security interest or the continuing status of Bank's
security interest as the first priority lien on the Collateral or any part
thereof,
(b) immediate written notice whenever any Person other than Grantor or
Bank claims any lien or other right or interest of any kind in any of the
Collateral, and
(c) immediate written notice whenever Grantor acquires rights in any
Collateral that is subject to (i) a treaty or statute of the United States which
provides for
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national or international registration or a national or international
certificate of title or which specifies a place of filing different from that
specified in the UCC or (ii) a certificate of title statute of another
jurisdiction under the law of which indication of a security interest is
required as a condition of perfection.
4.3 Records. Grantor will at all times keep accurate and complete records
of the Collateral. Bank (or one or more Persons selected by Bank) shall have the
right at all reasonable times to examine, inspect, and make extracts from
Grantor's books and records and to examine, appraise, and protect the
Collateral.
4.4 Dispositions and Encumbrances. Bank does not authorize, and Grantor
agrees not to, without in each case obtaining Bank's prior written consent,
(a) sell, lease, transfer or otherwise dispose of any Collateral or
any interest therein, except if and to the extent that the sale, lease, transfer
or other disposition is expressly permitted by this Agreement;
(b) license any of the Collateral; or
(c) suffer or permit any Collateral to be (i) or become subject to any
assignment, lease, license, attachment, mortgage, security interest, or other
lien, or any other claim, right, or interest of any kind, except for any in
favor of or expressly consented to by Bank or (ii) described in any mortgage,
financing statement, or other Record, except any evidencing any lien or interest
expressly permitted by this Agreement.
5. Special Provisions Applicable to Goods. The provisions of this section 5
shall apply with respect to all Goods in which Bank has been granted a security
interest pursuant to this Agreement:
5.1 Movement and Attachment to Real Property. Grantor will not suffer or
permit any Goods in which Bank has been granted a security interest pursuant to
this Agreement to be moved from Grantor's chief executive office or the
locations, if any, described in the Supplemental Schedule, if any, to this
Agreement, as the location of the Goods in question on the date hereof, except
if and to the extent that the Goods are either Inventory being shipped to or
from Grantor in the ordinary course of business or are mobile goods which are of
a type normally used in more than one jurisdiction and are in fact so used by
Grantor in the ordinary course of business. Grantor will not under any
circumstance suffer or permit any Goods in which Bank has been so granted a
security interest to be or become affixed to any real property in any manner
which would change its nature from that of personal property to real property or
to be or become a Fixture without Bank's prior written consent.
5.2 Maintenance of Goods, Taxes and Preservation Costs. Grantor will
maintain in good condition all Goods in which Bank has been granted a security
interest pursuant to this Agreement, and will pay promptly all assessments,
levies, taxes, and other charges pertaining thereto, and all repair,
maintenance, and preservation costs in respect
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thereof. If Grantor does not do so, then, and in each such case, Bank shall have
the right, at its option, to pay the same, and Grantor will, on Bank's demand,
reimburse Bank for all amounts Bank so pays. If Grantor does not reimburse Bank,
such amounts paid will become a part of the Subject Debt and will be secured
hereunder.
5.3 Insurance. Grantor will at all times keep all Goods in which Bank has
been granted a security interest insured under so-called "cause of loss special
form" policies of insurance issued by such companies and in such amounts (but in
no case less than the greater of the full replacement value thereof or the
amount necessary to prevent the operation of any applicable coinsurance
provision) as shall be acceptable to Bank. Any determination by Bank regarding
the acceptability of the issuer or the amount of any insurance policy shall be
deemed to have been made without any representation or warranty of any kind,
Grantor hereby assuming the burden of ensuring that each such issuer and each
such amount is adequate for the protection of Grantor and all other Persons.
Grantor will cause each policy of insurance covering any Goods in which Bank has
been granted a security interest pursuant to this Agreement to (a) require the
insurer to give Bank written notice not less than thirty (30) days prior to any
cancellation, expiration, modification, or non-renewal of the policy, (b) have
attached thereto (i) a lender's loss payable endorsement in favor of Bank,
entitling Bank to collect any and all proceeds payable under the policy and
providing in effect that the rights and interests of Bank thereunder are
independent of, and shall not be diminished or impaired by, any action,
inaction, or breach of condition on the part of Grantor and (ii) a waiver of
subrogation endorsement, and (c) be otherwise in form and substance satisfactory
to Bank. Grantor will pay all premiums for the foregoing policies of insurance
as and when due and will cause the issuer of each such policy to deliver an
original counterpart thereof directly to Bank. Grantor hereby assigns to Bank
any returned or unearned premiums due upon cancellation of any such insurance
and directs insurer to pay to Bank all amounts so due. All or any portion of
amounts received by Bank in payment of insurance losses or returned or unearned
premiums may, at Bank's option, be applied to the Subject Debt (with such
allocation to the respective parts thereof and the respective due dates thereof
as Bank in its sole discretion may from time to time deem advisable) or to the
repair, replacement, or restoration of the Goods insured. Grantor hereby
irrevocably appoints Bank as Grantor's attorney-in-fact to adjust all insurance
losses, to sign all applications, receipts, releases, and other Records
necessary to collect any such loss and any returned or unearned premiums, to
execute proofs of loss, to make settlements, to indorse and collect any check or
other item payable to Grantor issued in connection therewith, and to apply the
same to payment of the Subject Debt as hereinbefore provided. If Grantor does
not maintain insurance pursuant to this subsection, then, and in each such case,
Bank shall have the right to obtain such insurance or obtain insurance covering
only Bank's interest, and, if Bank elects to do either, Grantor will, on Bank's
demand, reimburse Bank for all amounts Bank expends in doing so. If Grantor does
not reimburse Bank, such amounts paid will become part of the Subject Debt and
will be secured hereunder.
5.4 Acquisition and Disposition of Inventory. Bank does not authorize, and
Grantor agrees not to:
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(a) sell, transfer, or otherwise dispose of any Inventory, except
that so long as no Default exists, Grantor shall have the right, in the ordinary
course of business but not otherwise, to process and sell Inventory for
customary prices, provided, that Grantor shall immediately deposit the Proceeds
of each such sale to the cash collateral account, if any then exists, pursuant
to subsection 6.5, or, if none then exists, to the credit of Grantor's general
checking account with Bank or any Deposit Account over which Bank has Control,
without Bank's prior written consent; or
(b) permit any Goods in which Bank has been granted a security
interest pursuant to this Agreement to be evidenced by any warehouse receipt or
other document of title (other than any ▇▇▇▇ of lading or similar Document
covering Inventory that has been sold in accordance with this section) or by any
lease, license, conditional sales agreement, or other Chattel Paper of any kind.
6. Special Provisions Applicable to Accounts. The provisions of this section 6
shall apply with respect to all Accounts in which Bank has been granted a
security interest pursuant to this Agreement:
6.1 Notice: Government Accounts; Non-Accounts. Grantor will give Bank
immediate written notice whenever any Account (a) arises out of a contract with
or order from the United States of America or any department, agency,
instrumentality, or political subdivision thereof or (b) does not take the form
of an Account or is evidenced in whole or in part by Chattel Paper or any
Instrument.
6.2 Collection of Accounts by Grantor. Subject to the provisions of
subsection 6.3, Grantor will collect the Accounts in the ordinary course of
business for the benefit of both Bank and Grantor at no cost or expense to Bank.
Until any Default shall have occurred and thereafter unless and until Bank shall
have advised Grantor to the contrary, Grantor shall have the right in the
ordinary course of business, to grant such waivers and consents to, enter into
such compromises with, and otherwise deal with the Account Debtors in respect of
the Accounts as Grantor in good faith may from time to time deem advisable.
6.3 Direct Payment to Bank or Lockbox. Bank shall have the right, (a) at
any time to enforce Grantor's rights against the Account Debtors and Obligors
including, without limitation, instructing Account Debtors, at Grantor's
expense, to thereafter make their payments in respect of the Accounts directly
to Bank and (b) in any event, by giving prior notice to Grantor, from time to
time to require Grantor to instruct the Account Debtors thereafter to mail their
payments to a post office lockbox which Bank shall maintain at Grantor's expense
and to which only Bank shall have access and control. Following Bank's exercise
of either such right, Grantor will not, without in each case first obtaining
Bank's consent, demand payment in respect of any Account, and if Grantor shall
at any time receive any payment in respect of any Account, Grantor will in each
case give Bank prompt notice thereof, hold the amount so received in trust for
the benefit of Bank, and promptly remit the same to Bank in the very form in
which received but with all necessary indorsements and assignments to facilitate
Bank's collection thereof.
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6.4 Authority of Account Debtors. Grantor irrevocably authorizes and
directs each Account Debtor to honor any demand by Bank that all payments in
respect of the Accounts thereafter be paid directly to Bank. In each such case
the Account Debtor may continue directing all such payments to Bank until the
Account Debtor shall have received written notice from Bank either that the
Subject Debt has been paid in full or that Bank no longer claims a security
interest in the Accounts. No Account Debtor shall have any responsibility to
inquire into Bank's right to make any such demand or to follow Bank's
disposition of any monies paid to Bank by the Account Debtor.
6.5 Deposits. All payments in respect of the Accounts shall, at Bank's
option, be deposited either to a checking account maintained by Grantor with
Bank, a Deposit Account over which Bank has Control or to a cash collateral
account which shall bear no interest, over which Bank shall have sole dominion
and control, and from which only Bank may withdraw funds, whichever option Bank
shall from time to time elect by giving Grantor written notice thereof. Bank
shall have no responsibility to ascertain whether any such payment is the
correct amount owing. Each such deposit shall be subject to Bank's general rules
and regulations except to the extent, if any, inconsistent with this Agreement.
6.6 Withdrawal and Application of Funds. Bank may from time to time
withdraw funds from the cash collateral account at will. Bank shall be under no
obligation to withdraw funds from the cash collateral account, except that upon
each request of Grantor, Bank shall, if no Default then exists, withdraw all
such funds that are then collected. All funds so withdrawn shall be applied to
the payment of the Subject Debt with such allocation to the respective parts
thereof and the respective due dates thereof as Bank in its sole discretion may
from time to time deem advisable (except that so long as no Default exists, Bank
shall not apply any such withdrawal to any Subject Debt that is not then due
without first obtaining Grantor's consent). If any funds so withdrawn and
applied are recovered from Bank by any trustee in bankruptcy or any other Person
or are discovered not to have been collected and collection thereof is denied to
Bank, Bank shall have the right to reverse any such application to the extent
the funds are recovered from or not collected by Bank. Bank in its discretion
may from time to time release to Grantor (or to Grantor's order) any or all of
the funds then held in the cash collateral account, but no such release or
releases shall commit Bank thereafter to make any further or other such
releases.
6.7 Vouchers, Receipts, and Indorsements. Bank shall have full power and
authority to execute and deliver such vouchers and receipts in respect of the
Accounts, such indorsements of checks, and such other Records in respect of the
foregoing as Bank may from time to time deem advisable. In connection with the
foregoing, Bank shall have full power and authority to sign Grantor's signature
to all such vouchers, receipts, indorsements, and other Records whenever Bank
deems such action advisable.
6.8 Verification of Accounts. Bank shall have the right, at any time and
from time to time, to arrange for verification of Accounts directly with Account
Debtors or by such other methods as Bank shall deem advisable.
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7. Maintenance and Defense of General Intangibles. Subject in each case to any
security interest in favor of Bank and Bank's rights in respect thereof, and
further subject to section 6 governing Accounts, Grantor will, until any Default
shall have occurred and thereafter unless and until Bank shall have advised
Grantor to the contrary, without expense to Bank, maintain, enforce, and
exercise Grantor's rights in all General Intangibles (except any which are of no
material value) and defend and protect those intangibles against dilution,
diminution in value, infringement, misappropriation, and unauthorized use.
8. Effects of Default. Bank shall at all times have all of the rights of a
secured party under the law of the jurisdiction in which Bank's banking office
is located and, in addition, if any Default shall occur or commence to exist,
then, and in each such case, the following provisions shall apply:
8.1 Possession of Goods and Records. Bank shall have the right to take
possession of all Goods in which Bank has been granted a security interest
pursuant to this Agreement, or such part of those Goods as Bank may from time to
time deem advisable, and Grantor will, on each demand of Bank, assemble and make
available to Bank at such place or places as Bank may reasonably require such of
those Goods as Bank shall designate. Grantor will, on Bank's demand, deliver to
Bank all of Grantor's books and records in respect of the Collateral.
8.2 Enforcement of Rights. Bank shall have the right in its sole discretion
to enforce payment of the Accounts by suit or otherwise, and to maintain and
enforce rights in respect of any General Intangibles and Accounts, but Bank
shall have no duty to institute any suit or to take any other action or, having
started any suit or the taking of any other action, to thereafter continue the
same. In each case Bank may proceed with counsel of Bank's choosing (at
Grantor's expense).
8.3 Exercise of Rights. Bank shall have full power and right to exercise
any and all rights and remedies available at law (including, without limitation,
those available under the provisions of the UCC) or in equity to collect,
enforce, or satisfy any of the Subject Debt and exercise any and all rights in
respect of the Collateral as if Bank were the sole beneficial owner thereof and
may, without limitation, grant such waivers and consents to, and enter into such
compromises with, the Account Debtors and other Persons, release (regardless of
whether Bank receives any consideration therefor) any security for or any
Account Debtor or other Person liable on any Account, and grant the Account
Debtors and other Persons such other indulgences as Bank in good faith may from
time to time deem advisable. Grantor waives any rights it may have, if any, to
require Bank to pursue any other Obligor for any of the Subject Debt.
8.4 Disposition. Bank shall have the right to sell or otherwise dispose of
the Collateral or any part thereof or any interest therein at any time or from
time to time. Bank shall have no obligation to clean-up or otherwise prepare the
Collateral for sale. Bank may comply with any applicable state or federal law
requirements in connection with a disposition of the Collateral and compliance
will not be considered adversely to affect the commercial reasonableness of any
sale of the Collateral. Bank may sell or otherwise dispose of the
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Collateral without giving any warranties as to the Collateral and may
specifically disclaim any warranties of title or the like, any or all of which
will not be considered adversely to affect the commercial reasonableness of any
sale or other disposition of the Collateral. Bank shall give Grantor
commercially reasonable prior notice of either the date after which any intended
private sale is to be made or the time and place of any intended public sale,
except that Bank need give no such notice in the case of Collateral which Bank
in good faith determines to be declining speedily in value or which is
customarily sold on a recognized market. Grantor waives advertisement of any
such sale and (except only to the extent notice is specifically required by the
next preceding sentence or as may otherwise be required by the UCC) waives
notice of any kind in respect of such sale. At any public sale Bank may purchase
the Collateral or any part thereof free from any right of redemption, which
right Grantor hereby waives. After deducting for any and all fees, costs, and
expenses (including, without limitation, the fees and disbursements of legal
counsel) incurred in assembling, taking, repairing, storing, and selling or
otherwise disposing of the Collateral or any part thereof or any interest
therein, Bank shall have the right to apply the net proceeds of the sale to the
Subject Debt with such allocation to the respective parts thereof and the
respective due dates thereof as Bank in its sole discretion may from time to
time deem advisable, and Grantor shall be liable for any deficiency.
9. Additional Authorizations. Grantor hereby irrevocably constitutes and
appoints Bank, through its employees and agents, with full power of
substitution, as Grantor's true and lawful attorney-in-fact, with full
irrevocable power and authority in the place of Grantor and in the name of
Grantor or in Bank's own name, for the purpose of carrying out the terms of this
Agreement, to perform, at any time and from time to time, each agreement
contained in this Agreement that is on Grantor's part to be complied with, and
to take any and all actions and to execute and deliver any and all Records which
may be necessary or desirable to give Bank the full benefit of this Agreement,
in each case as Bank may from time to time deem advisable, Grantor hereby
agreeing that Bank shall owe no duty whatever to Grantor to perform any such
agreement, to take any such action, or to execute or deliver any such Record,
or, having done so any one or more times, to thereafter continue doing so.
Without limiting the generality of the foregoing, Grantor hereby irrevocably
authorizes Bank, at any time and from time to time, to (a) fill in any blank
space contained in this Agreement or any other Related Writing or Record, (b)
correct patent errors, to complete and correct the description of Collateral,
and to complete the date herein or therein, (c) file, and if necessary sign, on
Grantors' behalf and file, at Grantors" expense and without Grantor's signature,
such affidavits, assignments, financing statements, indorsements of specific
items of Collateral, mortgages, powers of attorney, security agreements, or
other Records as Bank may from time to time deem advisable for the better
evidencing, perfection, protection, or validation of, or realization of the
benefits of, the security interest granted pursuant to this Agreement, and (d)
to the extent Bank filed any such affidavits, assignments, financing statements,
indorsements of specific items of Collateral, mortgages, powers of attorney,
security agreements, or other Records prior to the date of this Agreement, such
affidavits, assignments, financing statements, indorsements of specific items of
Collateral, mortgages, powers of attorney, security agreements, or other Records
are hereby ratified by Grantor.
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10. Unconditional and Continuing Security Interest. Grantor's obligations under
this Agreement and the granting of a security interest to Bank pursuant to this
Agreement are unconditional and effective immediately, and (except for
obligations surviving indefinitely pursuant to section 16) those obligations and
the security interest so granted shall continue in full effect until the Subject
Debt shall have been paid in full and any Commitment is terminated and
thereafter until Bank shall have delivered to Grantor (or such other Person or
Persons whom Bank determines in good faith to be entitled to the same) all
Collateral (except any applied to the Subject Debt) in Bank's possession and
until each assignment, financing statement, or other Record describing the
Collateral and naming Bank (or its successors or assigns, if any) as assignee or
secured party, as the case may be, shall have been released or terminated of
record as to all of the Collateral therein described, regardless of the lapse of
time, regardless of the fact that there may be a time or times when no Subject
Debt is outstanding, regardless of any act, omission, or course of dealing
whatever on Bank's part, and regardless of any other event, condition, or thing.
11. Grantor's Assent to Extensions, Releases, and Settlements. With respect to
the Collateral, Grantor assents to any extension or postponement of the time of
payment thereof or any other indulgence in connection therewith, to any
exchange, release, replacement, or substitution of Collateral, to any addition
or release of any Account Debtor, to any acceptance of any partial payment
thereon and to any adjustment, compromise, or settlement in respect thereof, all
in such manner and at such time or times as Bank shall deem advisable. Grantor
hereby waives any right it may have to require Bank to pursue any other Obligor
for any of the Subject Debt.
12. Bank's Duties Limited. Grantor agrees that Bank shall have no duty to
collect or protect the Collateral or any income therefrom, nor to preserve
rights against prior parties, beyond the safe custody of any Collateral in
Bank's possession. Bank shall have no liability for its delivery of any property
to any Person or Persons whom Bank determines in good faith to be entitled to
the same.
13. No Setoff. Grantor hereby waives all now existing or hereafter arising
rights to recoup or offset any obligation of Grantor under or in connection with
this Agreement or any Related Writing against any claim or right of Grantor
against Bank.
14. Indemnity: Administration, Enforcement, and Termination; Interest. Grantor
will reimburse Bank, on Bank's demand from time to time, for any and all fees,
costs, and expenses (including, without limitation, the fees and disbursements
of legal counsel) incurred by Bank in administering this Agreement and in
enforcing, exercising, or protecting its rights under this Agreement or under
applicable law, or in attempting to do any of the foregoing. Grantor agrees that
if and when Bank's security interest shall have terminated in accordance with
the provisions of this Agreement, Grantor will, on Bank's demand from time to
time, reimburse Bank for any and all fees, costs, and expenses (including,
without limitation, the fees and disbursements of legal counsel) incurred by
Bank in releasing or terminating each assignment, financing statement, or other
Record signed or given pursuant to this Agreement or in notifying Account
Debtors of any such release or termination. If any amount owing under this
Agreement is not paid when due, then, and in each such case, Grantor shall pay,
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on Bank's demand, interest on that amount from the due date thereof until paid
in full at a fluctuating rate equal to four percent (4%) per annum plus the
Prime Rate.
15. Waivers; Remedies; Application of Payments. Bank may from time to time in
its discretion grant waivers and consents in respect of this Agreement or any
other Related Writing or assent to amendments thereof, but no such waiver,
consent, or amendment shall be binding upon Bank unless set forth in a writing
(which writing shall be narrowly construed) signed by Bank. No course of dealing
in respect of, nor any omission or delay in the exercise of, any right, power,
or privilege by Bank shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any further or other exercise thereof or of
any other, as each such right, power, or privilege may be exercised either
independently or concurrently with others and as often and in such order as Bank
may deem expedient. Each right, power, or privilege specified or referred to in
this Agreement is in addition to, and not in limitation of any other rights,
powers, and privileges that Bank may otherwise have or acquire by operation of
law, by other contract, or otherwise. Bank shall be entitled to equitable
remedies with respect to each breach or anticipatory repudiation of any
provision of this Agreement, and Grantor hereby waives any defense that might be
asserted to bar any such equitable remedy. Bank shall have the right to apply
Proceeds and payments in respect of the Subject Debt with such allocation to the
respective parts thereof and the respective due dates thereof as Bank in its
sole discretion may from time to time deem advisable.
16. Other Provisions. The provisions of this Agreement shall bind Grantor and
Grantor's executors, heirs, representatives, successors, and assigns and all
Persons who become bound as a debtor or grantor to this Agreement and benefit
Bank and its successors and assigns, including each subsequent holder, if any,
of the Subject Debt or any part thereof. Except for Grantor and Bank and their
respective successors and assigns, there are no intended beneficiaries of this
Agreement, provided, that Bank shall have the right, in its discretion, to
designate, at any time and from time to time, one or more Account Debtors as
intended beneficiaries of subsection 6.4. If Grantor is more than one Person,
then, at Bank's discretion, those Persons, or any of them, may be deemed to be
jointly and severally liable for the payment and performance of Grantor's
obligations under this Agreement. The provisions of sections 11 through 19,
both inclusive, shall survive the payment in full of the Subject Debt and
termination of the security interest granted pursuant to this Agreement. The
several captions to different sections and subsections of this Agreement are
inserted for convenience only and shall be ignored in interpreting the
provisions thereof. Each reference to a section includes a reference to all
subsections thereof (i.e., those having the same character or characters to the
left of the decimal point), except where the context clearly does not so permit.
If any provision in this Agreement shall be or become illegal or unenforceable
in any case, then that provision shall be deemed modified in that case so as to
be legal and enforceable to the maximum extent permitted by law while most
nearly preserving its original intent, and in any case the illegality or
unenforceability of that provision shall affect neither that provision in any
other case nor any other provision. Interest for any given period shall accrue
on the first day thereof but not on the last day thereof (unless the last day is
the first day) and in each case shall be computed on the basis of a 360-day year
and the actual number of days in the period. In no event shall interest accrue
at a higher rate than the maximum rate, if any, permitted by law. Grantor hereby
authorizes Bank to share all
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credit and financial information relating to Grantor with Bank's parent company,
with any subsidiary or Affiliate of Bank or of Bank's parent company, with any
actual or proposed participant in or assignee of all or any part of Bank's
interests or rights hereunder, or with any other Person reasonably deemed
necessary by Bank to the administration hereof. This Agreement shall be governed
by the law (excluding conflict of laws rules) of the jurisdiction in which
Bank's banking office is located.
17. Integration. This Agreement and, to the extent consistent with this
Agreement, the other Related Writings, set forth the entire agreement of Grantor
and Bank as to its subject matter, and may not be contradicted by evidence of
any agreement or statement unless made in a writing (which writing shall be
narrowly construed) signed by Bank contemporaneously with or after the execution
and delivery of this Agreement.
18. Notices and Other Communications. Each notice, demand, or other
communication, whether or not received, shall be deemed to have been given to
Grantor whenever Bank shall have mailed a writing to that effect by certified or
registered mail, or recognized overnight courier service to Grantor at Grantors
mailing address (or any other address of which Grantor shall have given Bank
notice after the execution and delivery of this Agreement). Each communication
to be given to Bank shall be in writing and shall be given to Bank at Bank's
banking office (or any other address of which Bank shall have given notice to
Grantor after the execution and delivery of this Agreement). Grantor hereby
assumes all risk arising out of or in connection with each communication given
or attempted by Grantor in contravention of this section. Bank shall be entitled
to rely on each communication believed in good faith by Bank to be genuine.
19. Jurisdiction and Venue; Waiver of Jury Trial. Any action, claim,
counterclaim, crossclaim, proceeding, or suit, whether at law or in equity,
whether sounding in tort, contract, or otherwise at any time arising under or in
connection with this Agreement or any other Related Writing, the administration,
enforcement, or negotiation of this Agreement or any other Related Writing, or
the performance of any obligation in respect of this Agreement or any other
Related Writing (each such action, claim, counterclaim, crossclaim, proceeding,
or suit, an "Action") may be brought in any federal or state court located in
the city in which Bank's banking office is located. Grantor hereby
unconditionally submits to the jurisdiction of any such court with respect to
each such Action and hereby waives any objection Grantor may now or hereafter
have to the venue of any such Action brought in any such court. GRANTOR HEREBY,
AND EACH HOLDER OF THE SUBJECT DEBT OR ANY PART THEREOF, KNOWINGLY AND
VOLUNTARILY WAIVES JURY TRIAL IN RESPECT OF ANY ACTION.
IN WITNESS WHEREOF, Grantor, intending to be legally bound, has executed
this Security Agreement on the day and year first above written with the
intention that this Agreement shall constitute a sealed instrument.
Grantor:
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MODERN TECHNOLOGIES CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ (SEAL)
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Printed Name: ▇▇▇▇▇▇ ▇▇▇▇
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Title: President
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(complete only if required -- ) And By: (SEAL)
---------------------
Printed Name:
----------------------
Title:
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