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Exhibit 10.5
SECURITY AGREEMENT
(Continental)
THIS SECURITY AGREEMENT (the "Agreement") is made and entered into as
of the 25th day of July, 1997, by CONTINENTAL CIRCUITS CORP., a Delaware
corporation (hereinafter called "Debtor"), whose chief executive office is
located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, in favor of BANK ONE,
ARIZONA, NA, and its successors and assigns (hereinafter called "Secured
Party"), whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Commercial Banking, Dept. AZ1-1178.
1. SECURITY INTEREST
Debtor hereby grants to Secured Party a security interest (hereinafter
called the "Security Interest") in all of Debtor's right, title and interest in
and to the personal property (the "Collateral") described on the Schedule "A"
attached hereto.
2. OBLIGATION SECURED
The Security Interest shall secure, in such order of priority as
Secured Party may elect:
(a) Payment of the sum of FORTY-FIVE MILLION AND NO/100 DOLLARS
($45,000,000.00) according to the terms of that Revolving Promissory
Note dated July 25, 1997, made by Debtor, payable to the order of
Secured Party, evidencing a revolving line of credit, all or any part
of which may be advanced to Debtor, repaid by Debtor and readvanced to
Debtor, from time to time, subject to the terms and conditions thereof,
with interest thereon, extension and other fees, late charges,
prepayment premiums and attorneys' fees, according to the terms
thereof, and all extensions, modifications, renewals or replacements
thereof (hereinafter called the "Note");
(b) Payment, performance and observance by Debtor of each covenant,
condition, provision and agreement contained herein and of all monies
expended or advanced by Secured Party pursuant to the terms hereof, or
to preserve any right of Secured Party hereunder, or to protect or
preserve the Collateral or any part thereof;
(c) Payment, performance and observance by Debtor of each covenant,
condition, provision and agreement contained in that Loan Agreement
dated July 25, 1997 by and between Debtor and Secured Party
(hereinafter called the "Loan Agreement") and in any other document or
instrument related to the indebtedness described in subparagraph (a)
above (collectively, the "Loan Documents") and of all
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monies expended or advanced by Secured Party pursuant to the terms
thereof or to preserve any right of Secured Party thereunder;
(d) Payment and performance of any and all other indebtedness,
obligations and liabilities of Debtor to Secured Party of every kind
and character, direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred, whether such
indebtedness is from time to time reduced and thereafter increased or
entirely extinguished and thereafter reincurred; and
(e) The full and timely payment of all amounts now or hereafter due and
payable by Debtor to Secured Party under any interest rate swap, cap,
collar or similar transaction, or any Master Agreement for such
transactions, now or hereafter in effect between Debtor and Secured
Party, whether such amounts are due and payable on the date (s)
scheduled therefor, on the occurrence of an Early Termination Date (as
defined in the Master Agreement), or otherwise.
All of the indebtedness and obligations secured by this Agreement are
hereinafter collectively called the "Obligation."
3. USE; LOCATION; CONSTRUCTION
3.1 The Collateral is or will be used or produced primarily for
business purposes.
3.2 The Collateral will be kept at Debtor's address set forth at the
beginning of this Agreement and/or at the following locations: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Avenue, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Avenue, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
3.3 Debtor's records concerning the Collateral will be kept at Debtor's
address set forth at the beginning of this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF DEBTOR
Debtor hereby represents and warrants that:
4.1 The execution, delivery and performance by Debtor of this Agreement
and all other documents and instruments relating to the Obligation will not
result in a Material Adverse Effect due to any breach of the terms and
conditions or due to a default under any agreement or instrument under which
Debtor is a party or is obligated. Debtor is not in default in the performance
or observance of any covenants, conditions or provisions of any such agreement
or instrument that would result in a Material Adverse Effect.
4.2 Except as otherwise consented to by Secured Party in writing and
except for any
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Permitted Liens, Debtor is the owner of the Collateral free of all security
interests or other encumbrances except the Security Interest and no financing
statement covering the Collateral is filed or recorded in any public office.
4.3 The Collateral is, and is intended to be, used, produced or
acquired by Debtor for use primarily for the purpose marked in Section 3 above.
The address of Debtor set forth at the beginning of this Agreement is the chief
executive office of Debtor.
4.4 Each account, chattel paper or general intangible included in the
Collateral is genuine and enforceable in accordance with its terms against the
party named therein who is obligated to pay the same (hereinafter called
"Obligor"), and the security interests that are part of each item of chattel
paper included in the Collateral are valid, first and prior perfected security
interests. To the best of Debtor's knowledge, each Obligor is solvent, and the
amount that Debtor has represented to Secured Party as owing by each Obligor is
the amount actually and unconditionally owing by that Obligor, without deduction
except for normal cash discounts where applicable; to the best of Debtor's
knowledge, no Obligor has any defense, setoff, claim or counterclaim against
Debtor that can be asserted against Secured Party whether in any proceeding to
enforce the Security Interest or otherwise. Each document, instrument and
chattel paper included in the Collateral is complete and regular on its face and
free from evidence of forgery or alteration. No default has occurred in
connection with any instrument, document or chattel paper included in the
Collateral, no payment in connection therewith is overdue and no presentment,
dishonor or protest has occurred in connection therewith.
5. COVENANTS OF DEBTOR
5.1 Except as otherwise permitted in the Loan Agreement, Debtor shall
not sell, transfer, assign or otherwise dispose of any Collateral or any
interest therein (except as permitted herein) without obtaining the prior
written consent of Secured Party and, except as otherwise consented to by
Secured Party in writing, shall keep the Collateral free of all security
interests or other encumbrances except the Security Interest. Although proceeds
of Collateral are covered by this Agreement, this shall not be construed to mean
that Secured Party consents to any sale of the Collateral.
5.2 Debtor shall keep and maintain the Collateral in good condition and
repair and shall not use the Collateral in violation of any provision of this
Agreement or any applicable statute, ordinance or regulation or any policy of
insurance insuring the Collateral.
5.3 Debtor shall provide and maintain insurance insuring the Collateral
against risks in accordance with the provisions of the Loan Agreement.
5.4 Debtor shall pay when due all taxes, assessments and other charges
which may be levied or assessed against the Collateral.
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5.5 With respect to Collateral not subject to the Deed of Trust (as
defined in the Loan Agreement), Debtor shall prevent any portion of the
Collateral that is not a fixture from being or becoming a fixture and shall
prevent any portion of the Collateral from being or becoming an accession to
other goods that are not part of the Collateral.
5.6 If the Collateral includes motor vehicles, Debtor shall not remove
or permit such motor vehicles to be removed from the State of Arizona without
the prior written consent of Secured Party, shall keep all titled vehicles
properly registered with and licensed by the State of Arizona, shall provide
Secured Party with the license numbers of all titled vehicles, and upon the
occurrence of an Event of Default and notice thereof to Debtor by Secured Party,
shall cause the Security Interest to be shown as a valid first lien on the
Certificate of Title for all titled vehicles and shall thereupon deliver lien
filing receipts to Secured Party as evidence thereof.
5.7 Debtor, upon demand, shall promptly deliver to Secured Party all
instruments, documents and chattel paper included in the Collateral and all
invoices, shipping or delivery records, purchase orders, contracts or other
items related to the Collateral. Debtor shall notify Secured Party immediately
of any default by any Obligor in the payment or performance of its obligations
with respect to any Collateral. Debtor, without Secured Party's prior written
consent, shall not make or agree to make any alteration, modification or
cancellation of, or substitution for, or credit, adjustment or allowance on, any
Collateral, except in the ordinary course of business.
5.8 Debtor shall give Secured Party immediate written notice of any
change in the location of: (i) Debtor's chief executive office; (ii) the
Collateral or any part thereof; or (iii) Debtor's records concerning the
Collateral.
5.9 Secured Party or its agents may inspect the Collateral at
reasonable times and may enter into any premises where the Collateral is or may
be located. Debtor shall keep records concerning the Collateral in accordance
with generally accepted accounting principles and, if required in writing by
Secured Party, shall ▇▇▇▇ its records and the Collateral to indicate the
Security Interest. Secured Party shall have free and complete access to Debtor's
records and shall have the right to make extracts therefrom or copies thereof.
Upon request of Secured Party from time to time, Debtor shall submit up-to-date
schedules of the items comprising the Collateral in such detail as Secured Party
may require and shall deliver to Secured Party confirming specific assignments
of all accounts, instruments, documents and chattel paper included in the
Collateral.
5.10 Except for Permitted Liens, Debtor, at its cost and expense, shall
protect and defend this Agreement, all of the rights of Secured Party hereunder,
and the Collateral against all claims and demands of other parties, including
without limitation defenses, setoffs, claims and counterclaims asserted by any
Obligor against Debtor and/or Secured Party. Except for Permitted Liens, Debtor
shall pay all claims and charges that in the reasonable opinion of Secured Party
might prejudice, imperil or otherwise affect the Collateral or the Security
Interest. Except for Permitted Liens, Debtor shall promptly notify Secured Party
of any levy, distraint or other seizure by legal process or otherwise of any
part of the Collateral and of any threatened or filed claims
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or proceedings that might in any way affect or impair the terms of this
Agreement.
5.11 The Security Interest, at all times, shall be perfected and shall
be prior to any other interests in the Collateral except for Permitted Liens.
Debtor shall act and perform as necessary and shall execute and file all
security agreements, financing statements, continuation statements and other
documents requested by Secured Party to establish, maintain and continue the
perfected Security Interest. Debtor, on demand, shall promptly pay all costs and
expenses of filing and recording, including the costs of any searches, deemed
reasonably necessary by Secured Party from time to time to establish and
determine the validity and the continuing priority of the Security Interest.
5.12 If Debtor shall fail to pay any taxes, assessments, expenses or
charges, to keep all of the Collateral free from other security interests,
encumbrances or claims, to keep the Collateral in good condition and repair, to
procure and maintain insurance thereon, or to perform otherwise as required
herein, Secured Party may advance the monies necessary to pay the same, to
accomplish such repairs, to procure and maintain such insurance or to so
perform; Secured Party is hereby authorized to enter upon any property in the
possession or control of Debtor for such purposes.
5.13 All rights, powers and remedies granted Secured Party herein, or
otherwise available to Secured Party, are for the sole benefit and protection of
Secured Party, and Secured Party may exercise any such right, power or remedy at
its option and in its sole and absolute discretion without any obligation to do
so. In addition, if under the terms hereof, Secured Party is given two or more
alternative courses of action, Secured Party may elect any alternative or
combination of alternatives at its option and in its sole and absolute
discretion. All monies advanced by Secured Party under the terms hereof and all
amounts paid, suffered or incurred by Secured Party in exercising any authority
granted herein, including reasonable attorneys' fees, shall be added to the
Obligation, shall be secured by the Security Interest, shall bear interest at
the highest rate payable on any of the Obligation until paid, and shall be due
and payable by Debtor to Secured Party immediately without demand.
6. NOTIFICATION AND PAYMENTS; COLLECTION OF COLLATERAL; USE OF
COLLATERAL BY DEBTOR
6.1 Secured Party, after the occurrence of any Event of Default,
defined below, may notify any or all Obligors of the existence of the Security
Interest and may direct the Obligors to make all payments on the Collateral to
Secured Party. Secured Party agrees to notify Debtor promptly after any such
action, provided that the failure to give such notice shall not affect the
validity of such action. Until Secured Party has notified the Obligors to remit
payments directly to it, Debtor, at Debtor's own cost and expense, shall collect
or cause to be collected the accounts and monies due under the accounts,
documents, instruments and general intangibles or pursuant to the terms of the
chattel paper. Secured Party shall not be liable or responsible for any
embezzlement, conversion, negligence or default by Debtor or Debtor's agents
with respect to
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such collections; all agents used in such collections shall be agents of Debtor
and not agents of Secured Party. Unless Secured Party notifies Debtor in writing
that it waives one or more of the requirements set forth in this sentence, any
payments or other proceeds of Collateral received by Debtor, before or after
notification to Obligors, shall be held by Debtor in trust for Secured Party in
the same form in which received, shall not be commingled with any assets of
Debtor and shall be turned over to Secured Party not later than the next
business day following the day of receipt. All payments and other proceeds of
Collateral received by Secured Party directly or from Debtor shall be applied to
the Obligation in such order and manner and at such time as Secured Party, in
its sole discretion, shall determine. In addition, Debtor shall promptly notify
Secured Party of the return to or possession by Debtor of goods underlying any
Collateral; Debtor shall hold the same in trust for Secured Party and shall
dispose of the same as Secured Party directs.
6.2 Secured Party, after the occurrence of an Event of Default may
demand, collect and ▇▇▇ on the Collateral (either in Debtor's or Secured Party's
name), enforce, compromise, settle or discharge the Collateral and endorse
Debtor's name on any instruments, documents, or chattel paper included in or
pertaining to the Collateral; Secured Party agrees to notify Debtor promptly
after any such action, provided that the failure to give such notice shall not
affect the validity of such action. Debtor hereby irrevocably appoints Secured
Party its attorney in fact for all such purposes.
6.3 Until the occurrence of an Event of Default, Debtor may: (i) use,
consume and sell any inventory included in the Collateral in any lawful manner
in the ordinary course of Debtor's business provided that all sales shall be at
commercially reasonable prices; and (ii) subject to Paragraphs 6.1 and 6.2
above, retain possession of any other Collateral and use it in any lawful manner
consistent with this Agreement.
7. COLLATERAL IN THE POSSESSION OF SECURED PARTY
7.1 Secured Party shall use such reasonable care in handling,
preserving and protecting the Collateral in its possession as it uses in
handling similar property for its own account. Secured Party, however, shall
have no liability for the loss, destruction or disappearance of any Collateral
unless there is affirmative proof of a lack of due care; the lack of due care
shall not be implied solely by virtue of any loss, destruction or disappearance.
7.2 Debtor shall be solely responsible for taking any and all actions
to preserve rights against all Obligors; Secured Party shall not be obligated to
take any such actions whether or not the Collateral is in Secured Party's
possession. Debtor waives presentment and protest with respect to any instrument
included in the Collateral on which Debtor is in any way liable and waives
notice of any action taken by Secured Party with respect to any instrument,
document or chattel paper included in any Collateral that is in the possession
of Secured Party.
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8. EVENTS OF DEFAULT; REMEDIES
8.1 The occurrence of any Event of Default under the Loan Agreement shall
constitute and is hereby defined to be an "Event of Default".
8.2 Upon the occurrence of any Event of Default and at any time while such
Event of Default is continuing, Secured Party shall have the following rights
and remedies and may do one or more of the following:
(a) Declare all or any part of the Obligation to be immediately due and
payable, and the same, with all costs and charges, shall be collectible
thereupon by action at law.
(b) Without further notice or demand and without legal process, take
possession of the Collateral wherever found and, for this purpose, enter
upon any property occupied by or in the control of Debtor. Debtor, upon
demand by Secured Party, shall assemble the Collateral and deliver it to
Secured Party or to a place designated by Secured Party that is reasonably
convenient to both parties.
(c) Operate the business of Debtor as a going concern, including, without
limitation, extend sales or services to new customers and advance funds for
such operation. Secured Party shall not be liable for any depreciation,
loss, damage or injury to the Collateral or other property of Debtor as a
result of such action. Debtor hereby waives any claim of trespass or
replevin arising as a result of such action.
(d) Pursue any legal or equitable remedy available to collect the
Obligation, to enforce its title in and right to possession of the
Collateral and to enforce any and all other rights or remedies available to
it.
(e) Upon obtaining possession of the Collateral or any part thereof, after
notice to Debtor as provided in Paragraph 8.4 herein, sell such Collateral
at public or private sale either with or without having such Collateral at
the place of sale. The proceeds of such sale, after deducting therefrom all
expenses of Secured Party in taking, storing, repairing and selling the
Collateral (including reasonable attorneys' fees) shall be applied to the
payment of the Obligation, and any surplus thereafter remaining shall be
paid to Debtor or any other person that may be legally entitled thereto. In
the event of a deficiency between such net proceeds from the sale of the
Collateral and the total amount of the Obligation, Debtor, upon demand,
shall promptly pay the amount of such deficiency to Secured Party.
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8.3 Secured Party, so far as may be lawful, may purchase all or any part
of the Collateral offered at any public or private sale made in the enforcement
of Secured Party's rights and remedies hereunder.
8.4 Any demand or notice of sale, disposition or other intended action
hereunder or in connection herewith, whether required by the Uniform Commercial
Code or otherwise, shall be deemed to be commercially reasonable and effective
if such demand or notice is given to Debtor at least fifteen (15) days prior to
such sale, disposition or other intended action, in the manner provided herein
for the giving of notices.
8.5 Debtor shall pay all costs and expenses, including without limitation
costs of Uniform Commercial Code searches, court costs and reasonable attorneys'
fees, incurred by Secured Party in enforcing payment and performance of the
Obligation or in exercising the rights and remedies of Secured Party hereunder.
All such costs and expenses shall be secured by this Agreement and by all deeds
of trust and other lien and security documents securing the Obligation. In the
event of any court proceedings, court costs and attorneys' fees shall be set by
the court and not by jury and shall be included in any judgment obtained by
Secured Party.
8.6 In addition to any remedies provided herein for an Event of Default,
Secured Party shall have all the rights and remedies afforded a secured party
under the Uniform Commercial Code and all other legal and equitable remedies
allowed under applicable law. No failure on the part of Secured Party to
exercise any of its rights hereunder arising upon any Event of Default shall be
construed to prejudice its rights upon the occurrence of any other or subsequent
Event of Default. No delay on the part of Secured Party in exercising any such
rights shall be construed to preclude it from the exercise thereof at any time
while that Event of Default is continuing. Secured Party may enforce any one or
more rights or remedies hereunder successively or concurrently. By accepting
payment or performance of any of the Obligation after its due date, Secured
Party shall not thereby waive the agreement contained herein that time is of the
essence, nor shall Secured Party waive either its right to require prompt
payment or performance when due of the remainder of the Obligation or its right
to consider the failure to so pay or perform an Event of Default.
9. MISCELLANEOUS PROVISIONS
9.1 The acceptance of this Agreement by Secured Party shall not be
considered a waiver of or in any way to affect or impair any other security that
Secured Party may have, acquire simultaneously herewith, or hereafter acquire
for the payment or performance of the Obligation, nor shall the taking by
Secured Party at any time of any such additional security be construed as a
waiver of or in any way to affect or impair the Security Interest; Secured Party
may resort, for the payment or performance of the Obligation, to its several
securities therefor in such order and manner as it may determine.
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9.2 Without notice or demand, without affecting the obligations of Debtor
hereunder or the personal liability of any person for payment or performance of
the Obligation, and without affecting the Security Interest or the priority
thereof, Secured Party, from time to time, may: (i) extend the time for payment
of all or any part of the Obligation, accept a renewal note therefor, reduce the
payments thereon, release any person liable for all or any part thereof, or
otherwise change the terms of all or any part of the Obligation; (ii) take and
hold other security for the payment or performance of the Obligation and
enforce, exchange, substitute, subordinate, waive or release any such security;
(iii) join in any extension or subordination agreement; or (iv) release any part
of the Collateral from the Security Interest.
9.3 Except as otherwise provided in the Loan Documents, Debtor waives and
agrees not to assert: (i) any right to require Secured Party to proceed against
any guarantor, to proceed against or exhaust any other security for the
Obligation, to pursue any other remedy available to Secured Party, or to pursue
any remedy in any particular order or manner; (ii) the benefits of any legal or
equitable doctrine or principle of marshalling; (iii) the benefits of any
statute of limitations affecting the enforcement hereof; (iv) demand, diligence,
presentment for payment, protest and demand, and notice of extension, dishonor,
protest, demand and nonpayment, relating to the Obligation; and (v) any benefit
of, and any right to participate in, any other security now or hereafter held by
Secured Party.
9.4 The terms herein shall have the meanings in and be construed under the
Uniform Commercial Code. Undefined capitalized terms used herein shall have the
meaning given them in the Loan Agreement. This Agreement shall be governed by
and construed according to the laws of the State of Arizona. Each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be void
or invalid, the same shall not affect the remainder hereof which shall be
effective as though the void or invalid provision had not been contained herein.
9.5 No modification, rescission, waiver, release or amendment of any
provision of this Agreement shall be made except by a written agreement executed
by Debtor and a duly authorized officer of Secured Party.
9.6 This is a continuing Agreement which shall remain in full force and
effect until actual receipt by Secured Party of written notice of its revocation
as to future transactions and shall remain in full force and effect thereafter
until all of the Obligation incurred before the receipt of such notice, and all
of the Obligation incurred thereafter under commitments extended by Secured
Party before the receipt of such notice, shall have been paid and performed in
full.
9.7 No setoff or claim that Debtor now has or may in the future have
against Secured Party shall relieve Debtor from paying or performing the
Obligation.
9.8 Time is of the essence hereof. If more than one Debtor is named
herein, the word "Debtor" shall mean all and any one or more of them, severally
and collectively. All liability
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hereunder shall be joint and several. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their heirs, personal
representatives, successors and assigns. The term "Secured Party" shall include
not only the original Secured Party hereunder but also any future owner and
holder, including pledgees, of note or notes evidencing the Obligation. The
provisions hereof shall apply to the parties according to the context thereof
and without regard to the number or gender of words or expressions used.
9.9 Except for telephonic notices permitted herein, any notices or other
communications required or permitted to be given hereunder must be (i) given in
writing and personally delivered or mailed by prepaid certified or registered
mail, or (ii) made by telefacsimile delivered or transmitted, to the party to
whom such notice or communication is directed. Any notice to be personally
delivered may be delivered to the principal offices (determined as of the date
of such delivery) of the party to whom such notice is directed. Any such notice
or other communication shall be deemed to have been given (whether actually
received or not) on the day it is personally delivered as aforesaid; or, if
mailed, on the third day after it is mailed as aforesaid; or, if transmitted by
telefacsimile, on the day that such notice is transmitted as aforesaid. The
designated address of a party shall be the address of that party shown at the
beginning of this Agreement or such other address as that party, from time to
time, may specify by notice to the other parties.
9.10 A carbon, photographic or other reproduced copy of this Agreement
and/or any financing statement relating hereto shall be sufficient for filing
and/or recording as a financing statement.
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IN WITNESS WHEREOF, these presents are executed as of the date indicated
above.
CONTINENTAL CIRCUITS CORP., a Delaware
corporation
Witnessed by:
(other than notary)
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
-------------------------------------------
Its President and Chief Executive Officer
(Signature of witness)
DEBTOR
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 25th day of July,
1997, by ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, the President and Chief Executive Officer of
CONTINENTAL CIRCUITS CORP., a Delaware corporation, on behalf of that
corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
(Signature of Notary)
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Notary Public
My commission expires:
(Official Seal)
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SCHEDULE "A"
Collateral
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