AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (the "Security Agreement") is made
as of May 9, 1996, by NORTH ATLANTIC TECHNOLOGIES, INC., a Minnesota
corporation, with its chief executive office at 0000 Xxxx Xxxxxx Xxxxx, Xxxxx
000, Xxxxxxxxxxx, Xxxxxxxxx 00000 (whether one or more, the "Debtor"), in favor
of, FIRST BANK NATIONAL ASSOCIATION, a national banking association (the
"Secured Party").
RECITALS
FIRST: Debtor and Secured Party are parties to a credit agreement dated as of
December 21, 1987 ("Original Agreement"). Pursuant to the terms of the Original
Agreement the Lender agreed to extend on a revolving credit basis sums to
Debtor. The Original Agreement was amended by a First Amendment to Credit
Agreement dated April 13, 1990, a Second Amendment to Credit Agreement dated
June 18, 1991, a Third Amendment to Credit Agreement dated September 25, 1991, a
Fourth Amendment to Credit Agreement dated December 30, 1991, a Fifth Amendment
to Credit Agreement dated June 26, 1992, a Sixth Amendment dated as of December
29, 1992, a Seventh Amendment dated as of August 31, 1993, an Eighth Amendment
dated October 25, 1993, a Ninth Amendment dated August 31, 1994, a Tenth
Amendment to Credit Agreement dated March 28, 1995, an Eleventh Amendment to
Credit Agreement dated May 8, 1995, an Eleventh Amendment dated August 31, 1995,
and a Twelfth Amendment dated October 31, 1995.
SECOND: Debtor's loans are secured by an attached and perfected security
interest in all of Debtor's inventory, accounts, equipment, general intangibles,
proceeds and products thereof. In addition, Xxxxxx X. Xxxx, shareholder of the
Debtor, has guaranteed all obligations of the Debtor pursuant to a Guaranty
dated December 21, 1987. In addition, the Debtor's loans are secured pursuant to
the terms of a Pledge Agreement dated December 21, 1987 by Xxxxxx X. Xxxx
pledging certain financial assets including securities to the Secured Party.
THIRD: On February 1, 1996 Debtor filed for relief under Chapter 11 of Title 11
of the United States Code, and pursuant to an order confirming the Debtor's Plan
of Reorganization dated April 19, 1996, Debtor and Secured Party agree to amend
and restate the terms of the Original Agreement and other loan documents as set
forth in the confirmed Plan and to provide additional credit accommodations to
Debtor pursuant to an agreement between the parties of even date herewith
("Credit Agreement") and the confirmed Plan of Reorganization.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged by each of the parties hereto, it is agreed as
follows:
DEFINITIONS
As used herein, the following terms shall have the meaning set forth:
"Accounts" means the Debtor's right to the payment of money from the sale, lease
or other disposition of goods or other property by the Debtor, any franchise now
or hereafter at any time held by the Debtor, a rendering of services by the
Debtor, a loan by the Debtor, the overpayment of taxes or other liabilities of
the Debtor, or otherwise any contract or agreement, whether such right to
payment is already earned by performance, and howsoever such right to payment
may be evidenced, together with all other rights and interests (including all
liens and security interests) that the Debtor may at any time have by law or
agreement against any account debtor (as defined in the Minnesota Uniform
Commercial Code) or other obligor obligated to make any such payment or against
any of the property of such account debtor or other obligor, including, but not
limited to, all present and future debt instruments, chattel papers, insurance
proceeds and accounts of the Debtor.
"Chattel Paper" means any writing or writings which evidence both a monetary
obligation and a security interest in, or a lease of, specific Goods.
"Collateral" means all property in which a security interest is granted
hereunder wherever located.
"Controlled Property" means property of every kind and description in which
Debtor has or may acquire any interest, now or hereafter at any time in the
possession, custody or control of Secured Party for any reason and all dividends
and distributions on or other rights in connection with such property.
"Data Processing Records and Systems" means all of Debtor's now existing or
hereafter acquired electronic data processing and computer records, software,
systems, manuals procedures, disks, tapes and all other storage media and
memory.
"Default" means any event which, with the passage of time, the giving of notice,
or both, would constitute an Event of Default.
"Deposit Accounts" mean all deposit accounts now existing or hereafter arising,
maintained for or in Debtor's name and any and all funds at any time held
therein.
"Document" means any xxxx of lading, dock warrant, dock receipt, warehouse
receipt or order for the delivery of goods or any other document that is treated
in the regular course of business or financing as adequately evidencing that the
holder of such document is entitled to receive, hold and dispose of the document
and the Goods it covers or any receipt issued for Goods that are stored under a
statute requiring a bond against withdrawal or under a license for the issuance
of receipts in the nature of warehouse receipts.
"Equipment" means any Goods used or bought for use primarily in the Debtor's
business.
"Event of Default" has the meaning specified in Article VII hereof.
"Fixtures" means any Goods which have become so affixed to particular real
estate that an interest in them arises under real estate law.
"General Intangibles" means any personal property (including things in action)
other than Goods, Accounts, Chattel Paper, Documents, Instruments and money.
"Goods" means any tangible personal property or Fixtures, including all things
that are movable, but not including money, Documents, Instruments, Accounts,
Chattel Paper, General Intangibles or minerals or the like before extraction.
"Instruments" means any negotiable instrument or certificated or
non-certificated security or any other writing which evidences a right to the
payment of money and is not itself a security agreement or lease and is of a
type which is in the ordinary course of business transferred by delivery with
any necessary endorsement or assignment.
"Insurance Proceeds" means all proceeds of any and all insurance policies
payable to Debtor, or on behalf of Debtor's property, whether or not such
policies are issued to or owned by Debtor.
"Inventory" means any Goods held for sale or lease or furnished or to be
furnished under contracts of service, or raw materials, work in process or
materials used or consumed in a business.
"Liens" means any and all mortgages, pledges, security interests, tax and other
statutory liens, judgment liens, and other encumbrances of any nature
whatsoever, whether consensual or non-consensual.
"Obligations" means all indebtedness, obligations and liabilities of the Debtor
to the Secured Party, howsoever evidenced, now existing or hereafter arising or
incurred, direct or indirect, absolute or contingent, joint or several,
howsoever owned, held or acquired by the Secured Party, whether by discount,
direct loan, overdraft, purchase or otherwise.
"Permitted Liens" means the Liens described in Part 4 of Exhibit A attached
hereto and made a part hereof.
"Proceeds" means whatever is received upon the sale, exchange, collection or
other disposition of Collateral or Proceeds, including, but not limited to,
Insurance Proceeds and return premiums.
"Products" means any goods now or hereafter manufactured, processed, assembled
or commingled with any of the Collateral.
Other terms defined herein shall have the meaning ascribed to them herein. All
capitalized terms used herein not specifically defined herein shall have the
meaning ascribed to them in the Credit Agreement.
SECURITY INTERESTS
Collateral. As security for the payment of all Obligations, Debtor hereby grants
to Secured Party a security interest in all of Debtor's now owned or hereafter
acquired or arising:
Accounts;
Chattel Paper;
Controlled Property;
Data Processing Records and Systems;
Documents;
Equipment and Fixtures;
General Intangibles;
Goods;
Instruments;
Insurance Proceeds;
Inventory;
Proceeds (whether cash or non-cash Proceeds, including non-cash Proceeds of all
types including, but not limited to, Inventory, Equipment or Fixtures acquired
with cash Proceeds); and
Products of all the foregoing.
REPRESENTATIONS AND WARRANTIES OF DEBTOR
Debtor represents, warrants and covenants that:
Organization, etc. The Debtor is a corporation validly organized and existing
and in good standing under the laws of the state of Minnesota, has full power
and authority to own its property and conduct its business substantially as
presently conducted by it and is duly qualified to do business and is in good
standing as a corporation in Minnesota and in each other jurisdiction where the
nature of its business makes such qualification necessary. The Debtor has full
power and authority to enter into and perform its obligations under this
Security Agreement and grant the liens and security interests hereunder.
Due Authorization. The execution, delivery and performance by the Debtor of this
Security Agreement (1) have been duly authorized by all necessary corporate
action, (2) do not require any approval or consent of, or any registration,
qualification or filing with, any governmental agency or authority, or any
approval or consent of any other Person (including, without limitation, any
stockholder), (3) do not and will not conflict with, result in any violation of
or constitute any default under, any provision of the Debtor's By-Laws or its
Confirmed Plan of Reorganization or any agreement binding on or applicable to
the Debtor or any of its property, or any law or governmental regulation or
court decree or order binding upon or applicable to the Debtor or of any of its
property, and (4) will not result in the creation or imposition of any Lien on
any of its property pursuant to the provisions of any agreement binding on or
applicable to the Debtor or any of its property except pursuant to this Security
Agreement.
Validity of this Security Agreement. This Security Agreement represents a legal,
valid and binding obligation of the Debtor enforceable in accordance with its
terms, subject only to bankruptcy, insolvency, reorganization, moratorium or
similar laws, rulings or decisions at the time in effect affecting the
enforceability of rights of creditors generally and to general equitable
principles which may limit the right to obtain equitable remedies. This Security
Agreement grants to Secured Party a valid, first priority perfected and
enforceable lien on the Collateral.
Financial Information. The financial statements of the Debtor previously
furnished to the Secured Party have been prepared in accordance with generally
accepted accounting principles consistently applied by the Debtor and present
fairly the financial condition of the Debtor as of the dates thereof and for the
periods covered thereby.
Litigation, Other Proceedings. There is no action, suit or proceeding at law or
equity, or before or by any federal, state, local or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, pending or, to the knowledge of the Debtor, threatened, against the
Debtor or any of its property or any predecessor of the Debtor, which if
determined adversely would have a material adverse effect on the condition
(financial or otherwise), the business or properties of the Debtor or would
affect the ability of the Debtor to perform its obligations under this Security
Agreement; and the Debtor is not in default with respect to any final judgment,
writ, injunction, decree, rule or regulation of any court or federal, state,
local or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign where such default would have a material
adverse affect on the business, operations and condition (financial or
otherwise) of the Debtor.
Guarantees and Indebtedness. The Debtor is not a party to any contract of
guaranty or suretyship and none of its assets is subject to any contract of that
nature and the Debtor is not indebted to any other party, except the Secured
Party.
Title to Collateral. The Debtor is sole owner of, has rights in, and has good
and marketable title to all of the Collateral and none of the Collateral is
subject to any Lien except for Permitted Liens and the security interest created
pursuant to this Security Agreement.
Taxes. The Debtor has filed all federal, state and other income tax returns
which are required to be filed and have paid all taxes as shown on said returns,
and all taxes due or payable without returns and all assessments received to the
extent such taxes and assessments have become due. All tax liabilities of the
Debtor are adequately provided for on its books, including interest and
penalties. No income tax liability of a material nature has been asserted by
taxing authorities for taxes in excess of those already paid. The Debtor has
made all required withholding deposits.
Accuracy of Information. All factual information heretofore or herewith
furnished by or on behalf of the Debtor to the Secured Party for purposes of or
in connection with this Security Agreement or any transaction contemplated
hereby is, and all other such factual information hereafter furnished by or on
behalf of the Debtor to the Secured Party will be, true and accurate in every
material respect on the date as of which such information is dated or certified
and no such information contains any material misstatement of fact or omits to
state a material fact or any fact necessary to make the statements contained
therein not misleading.
Material Agreements. The Debtor is not a party to any agreement or instrument or
subject to any restriction that materially and adversely affects its business,
property or assets, operations or conditions, financial or otherwise.
Defaults. The Debtor is not in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any:
(a) agreement to which such entity is a party, which default might have a
material adverse effect on the business, properties or assets, operations, or
condition (financial or otherwise) of the Debtor; (b) instrument evidencing any
indebtedness or under any agreement relating thereto.
Survival of Representations. All representations and warranties contained in
this Section 3 shall survive the delivery of this Security Agreement and any
investigation at any time made by or on behalf of Secured Party shall not
diminish its rights to rely thereon.
COVENANTS OF THE DEBTOR
Disposition or Encumbrance of Collateral. Debtor will not encumber, sell or
otherwise transfer or dispose of the Collateral without the prior written
consent of Secured Party. Until a Default or Event of Default has occurred and
is continuing, Debtor may sell Inventory in the ordinary course of business and
may sell Equipment and Fixtures which in the judgment of Debtor have become
obsolete or unusable in the ordinary course of business, provided that all
Proceeds of such sales are delivered directly to Secured Party or used to
replace such Equipment and Fixtures which replacements or substitutions shall
constitute Collateral hereunder.
Validity of Accounts. The Debtor warrants that all Accounts, Chattel Paper and
Instruments will be bona fide existing obligations created by the sale and
actual delivery of Goods or the rendition of services to customers in the
ordinary course of business, which the Debtor then owns free and clear of any
Liens other than the security interest created by this Security Agreement and
Permitted Liens and which are then unconditionally owing to Debtor without
defenses, offset or counterclaim, and that all shipping or delivery receipts,
invoice copies and other documents furnished to Secured Party in connection
therewith will be genuine, and that the unpaid principal amount of any Chattel
Paper or Instrument and any security therefor is and will be as represented to
Secured Party on the date of the delivery thereof to the Secured Party. Upon the
request of the Secured Party, Debtor shall furnish to the Secured Party, from
time to time, a list of the Debtor's Accounts, including without limitation, the
name and address of each account debtor and the amount owed.
Maintenance of Equipment, Fixtures and Inventory; Location. Debtor will maintain
the Equipment, Fixtures and Inventory or cause the Equipment, Fixtures and
Inventory to be maintained in good condition and repair. At the time of
attachment and perfection of the security interest granted pursuant hereto and
thereafter, all Inventory, Equipment and Fixture Collateral will be located and
will be maintained only at the locations set forth on Exhibit A hereto. Such
Collateral will not be removed from such locations unless, prior to any such
removal, the Debtor has given written notice to Secured Party of the location or
locations to which the Debtor desires to remove the Collateral, Secured Party
has given its written consent to such removal, and the Debtor has delivered to
Secured Party acknowledgment copies of financing statements filed where
appropriate to continue the perfection of Secured Party's security interest as a
first priority security interest therein. Secured Party's security interest
attaches to all of the Collateral wherever located and Debtor's failure to
inform Secured Party of the location of any item or items of Collateral shall
not impair Secured Party's security interest therein.
Notation on Chattel Paper. For purposes of the security interest granted
pursuant to this Security Agreement, Secured Party has been granted a direct
security interest in all Chattel Paper and such Chattel Paper is not claimed
merely as Proceeds of Inventory. Upon Secured Party's request, Debtor will
deliver to Secured Party the originals of all Chattel Paper. Debtor will not
execute any copies of Chattel Paper other than those which are clearly marked as
a copy. Secured Party may stamp any such Chattel Paper with a legend reflecting
Secured Party's security interest therein.
Instruments as Proceeds. Notwithstanding any other provision in this Security
Agreement concerning Instruments, Debtor covenants that Instruments constituting
cash Proceeds (for example, money and checks) shall be deposited in deposit
accounts with Secured Party containing only Proceeds.
Protection of Collateral. All expenses of protecting, storing, warehousing,
insuring, handling and shipping of the Collateral, all costs of keeping the
Collateral free of any Liens prohibited by this Security Agreement and of
removing the same if they should arise, and any and all excise, property, sales
and use taxes imposed by any state, federal or local authority on any of the
Collateral or in respect of the sale thereof, shall be borne and paid by Debtor
and if Debtor fails to promptly pay any thereof when due, Secured Party may, at
its option, but shall not be required to, pay the same whereupon the same shall
constitute Obligations and shall bear interest at the highest annual rate
specified in the Obligations (the "Default Rate") and shall be secured by the
security interest granted hereunder.
Insurance. Debtor will procure and maintain, or cause to be procured and
maintained, insurance issued by responsible insurance companies insuring the
Collateral against damage and loss by theft, fire, collision (in the case of
motor vehicles), and such other risks as are usually carried by owners of
similar properties or as may be requested by the Secured Party in an amount
equal to the fair market value thereof and, in any event, in an amount
sufficient to avoid the application of any coinsurance provisions, and naming
the Secured Party as loss payee. All such insurance shall contain an agreement
by the insurer to provide the Secured Party with thirty (30) days' prior notice
of cancellation and an agreement that the interest of the Secured Party shall
not be impaired or invalidated by any act or neglect of the Debtor nor by the
occupation of the premises wherein such Collateral is located for purposes more
hazardous than are permitted by said policy. Debtor will maintain, with
financially sound and reputable insurers, insurance with respect to its
properties and business against such casualties and contingencies of such types
and in such amounts as may from time to time be required by the Secured Party.
Debtor will deliver evidence of such insurance and the policies of insurance or
copies thereof to the Secured Party upon request.
Compliance with Law. Debtor will not use the Collateral, or knowingly permit the
Collateral to be used, for any unlawful purpose or in violation of any federal,
state or municipal law.
Books and Records; Access.
Debtor will permit Secured Party to examine Debtor's books and records
(including Data Processing Records and Systems) with respect to the Collateral
and make extracts therefrom and copies thereof at any time and from time to
time, and Debtor will furnish such information and reports to Secured Party
regarding the Collateral as Secured Party may from time to time request. Debtor
will also permit Secured Party to inspect the Collateral at any time and from
time to time as Secured Party may reasonably request.
Secured Party shall have authority, at any time, to place, or require Debtor to
place, upon Debtor's books and records relating to Accounts, Chattel Paper,
Instruments and other rights to payment covered by the security interest granted
hereby a notation or legend stating that such Accounts, Chattel Paper,
Instruments and other rights to payment are subject to a security interest of
Secured Party.
Notice of Default. Immediately upon any officer of Debtor becoming aware of the
existence of any Default or Event of Default, Debtor will give notice to Secured
Party that such Default or Event of Default exists, stating the nature thereof,
the period of existence thereof, and what action Debtor proposes to take with
respect thereto.
Additional Documentation. Debtor will execute, from time to time, such financing
statements, assignments, and other documents covering the Collateral, including
Proceeds, as Secured Party may request in order to create, evidence, perfect,
maintain or continue its security interest in the Collateral (including
additional Collateral acquired by the Debtor after the date hereof), and Debtor
will pay the cost of filing the same in all public offices in which Secured
Party may deem filing to be appropriate; and will notify Secured Party promptly
upon acquiring any additional Collateral. Upon request, Debtor will deliver to
Secured Party all Debtor's Documents, Instruments and Chattel Paper.
Chief Executive Office. The location of the chief executive office of Debtor is
set forth in the preamble hereto and will not be changed without thirty (30)
days' prior written notice to Secured Party. Debtor warrants that its books and
records concerning its Accounts and Chattel Paper are located at its chief
executive office.
Name of Debtor. Debtor's true name is as set forth in the preamble hereto.
Debtor has not used any other name within the past five (5) years except those
described on Exhibit A attached hereto. Neither Debtor nor any predecessor in
title to any of the Collateral has executed any financing statements or security
agreements presently effective as to the Collateral except those described on
Exhibit A attached hereto. Debtor shall not change its name or use any trade or
assumed name without giving Secured Party fifteen (15) days prior written
notice.
Power of Attorney. The Debtor appoints Secured Party, or any other person, whom
Secured Party may from time to time designate, as Debtor's attorney with power
to endorse Debtor's name on any checks, notes, acceptances, drafts, or other
forms of payment or security that may come into Secured Party's possession, to
sign Debtor's name on any invoice or xxxx of lading relating to any Collateral,
on drafts against customers, on schedules and confirmatory assignments of
Accounts, Chattel Paper, Documents, Instruments or other Collateral, on notices
of assignment, financing statements under the Uniform Commercial Code (the
"Code") and other public records, on verifications of Accounts and on notices to
customers, to notify the post office authorities to change the address for
delivery of Debtor's mail to an address designated by Secured Party, to receive
and open all mail addressed to Debtor, to send requests for verification of
Accounts, Chattel Paper, Instruments or other Collateral to customers, make any
compromise or settlement, and take any action it deems advisable with respect to
the Collateral, and to do all things necessary to carry out this Security
Agreement. The Debtor ratifies and approves all acts of the attorney taken
within the scope of the authority granted. Neither Secured Party nor the
attorney will be liable for any acts of commission or omission nor for any error
in judgment or mistake of fact or law. This power, being coupled with an
interest, is irrevocable so long as any Obligation remains unpaid. The Debtor
waives presentment and protest of all instruments and notice thereof, notice of
default and dishonor and all other notices to which Debtor may otherwise be
entitled.
COLLECTIONS
Collection of Accounts. Except as otherwise provided in this Article 5, the
Debtor shall continue to collect at its own expense, all amounts due or to
become due to the Debtor, under the Accounts. In connection with such
collections, the Debtor may take (and, at the Secured Party's direction, shall
take) such action as the Debtor or the Secured Party may deem necessary or
advisable to enforce collection of the Accounts; provided, however, that the
Secured Party shall have the right, upon the occurrence of any Event of Default,
to notify the account debtors under any Accounts of the assignment of such
Accounts to the Secured Party and to direct such account debtors to make payment
of all amounts due or to become due to the Debtor thereunder directly to the
Secured Party. Upon the occurrence of any Event of Default, and after such
notification and at the expense of Debtor, the Secured Party shall have the
right to enforce collection of such Accounts and to adjust, settle, or
compromise the amount or payment thereof in the same manner and to the same
extent as the Debtor might have done. The Secured Party shall apply all
collections hereunder in accordance with Section 8.7.
Collection of Other Collateral Proceeds. The Debtor shall deposit into a
collection account (the "Collection Account") maintained with the Secured Party
immediately upon receipt all Proceeds of Collateral, other than accounts, in the
original form such payments are received, except for endorsement where
necessary. Upon the occurrence of an Event of Default, the Secured Party is
hereby authorized and directed to apply all such collected funds to the payment
of the Obligations in the manner and in the priority determined by the Secured
Party in the exercise of its sole discretion. Such funds shall be applied in
accordance with Section 8.7.
ASSIGNMENT OF INSURANCE
Debtor hereby assigns to the Secured Party, as additional security for payment
of the Obligations, any and all monies due or to become due under, and any and
all other rights of Debtor with respect to, any and all policies of insurance
covering the Collateral and Debtor hereby directs the issuer of any such policy
to pay any such monies directly to the Secured Party. After the occurrence and
during the continuation of a Default or Event of Default, the Secured Party may
(but need not) in its own name or in Debtor's name execute and deliver proofs of
claim, receive such monies, endorse checks and the instrument representing such
monies, and settle or litigate any claim against the issuer of any such policy.
EVENTS OF DEFAULT
The occurrence of any Event of Default as defined in the Credit Agreement shall
constitute an Event of Default hereunder ("Event of Default").
Any representation or warranty set forth in this Security Agreement or any other
document, agreement or instrument evidencing, securing or otherwise relating to
any of the Obligations shall be untrue in any material respect on the date as of
which the facts set forth are stated or certified.
RIGHTS AND REMEDIES ON DEFAULT
Upon the occurrence of an Event of Default, and at any time thereafter until
such Event of Default is cured to the satisfaction of Secured Party, and in
addition to the rights granted to Secured Party under Articles 5 and 6 hereof or
under any other document, agreement or other instrument evidencing, securing or
otherwise relating to any of the Obligations, Secured Party may exercise any one
or more of the following rights and remedies:
Acceleration of Obligations. Declare any and all Obligations to be immediately
due and payable, and the same shall thereupon become immediately due and payable
without further notice or demand.
Right of Offset. Offset any deposits, including unmatured time deposits, then
maintained by Debtor with Secured Party, whether or not then due, against any
indebtedness then owed by Debtor to Secured Party whether or not then due.
Deal with Collateral. In the name of Debtor or otherwise, demand, collect,
receive and receipt for, compound, compromise, settle and give acquittance for
and prosecute and discontinue any suits or proceedings in respect of any or all
of the Collateral.
Realize on Collateral. Take any action which Secured Party may deem necessary or
desirable in order to realize on the Collateral, including, without limitation,
the power to foreclose any security interest, to perform any contract, to
endorse in the name of Debtor any checks, drafts, notes, or other instruments or
documents received in payment of or on account of the Collateral.
Access to Property. Enter upon and into and take possession of all or such part
or parts of the properties of Debtor, including lands, plants, buildings,
machinery, equipment, Data Processing Records and Systems and other property as
may be necessary or appropriate in the judgment of Secured Party, to permit or
enable Secured Party to store, lease, sell or otherwise dispose of or collect
all or any part of the Collateral, and use and operate said properties for such
purposes and for such length of time as Secured Party may deem necessary or
appropriate for said purposes without the payment of any compensation to Debtor
therefor. Debtor shall provide Secured Party with all information and assistance
requested by Secured Party to facilitate the storage, leasing, assembly, sale or
other disposition or collection of the Collateral after an Event of Default, and
make such Collateral available to Secured Party on Secured Party's demand.
Other Rights. Exercise any and all other rights and remedies available to it by
law, in equity or by agreement, including rights and remedies under the
Minnesota Uniform Commercial Code or any other applicable law, or under the
Credit Agreement and, in connection therewith, Secured Party may require Debtor
to assemble the Collateral and make it available to Secured Party at a place to
be designated by Secured Party, and any notice of intended disposition of any of
the Collateral required by law shall be deemed reasonable if such notice is
mailed or delivered to Debtor at its address as shown on Secured Party's records
at least ten (10) days before the date of such disposition. The Secured Party
may sell or otherwise dispose of any or all of the Collateral in a single unit
or in multiple units and the Secured Party may be the purchaser at such sale or
other disposition. The Debtor shall remain liable for any deficiency remaining
after any such sale or other disposition of the Collateral.
Application of Proceeds. All proceeds of Collateral shall be applied in
accordance with Minnesota Statute Section 336.9-504 and such proceeds applied
toward the Obligations shall be applied in such order as the Secured Party may
elect.
MISCELLANEOUS
No Liability on Collateral. It is understood that Secured Party does not in any
way assume any of the Debtor's obligations under any of the Collateral and does
not intend to create any third party beneficiary rights by taking or omitting
any action herein. Debtor hereby agrees to indemnify Secured Party against all
liability arising in connection with or on account of any of the Collateral,
except for any such liabilities arising on account of Secured Party's gross
negligence or willful misconduct.
No Waiver. Secured Party shall not be deemed to have waived any of its rights
hereunder or under any other agreement, instrument or paper signed by Debtor
unless such waiver be in writing and signed by Secured Party. No delay or
omission on the part of Secured Party in exercising any right shall operate as a
waiver of such right or any other right. A waiver on any one occasion shall not
be construed as a bar to or waiver of any right or remedy on any future
occasion.
Remedies Cumulative. All rights and remedies of Secured Party shall be
cumulative and may be exercised singularly or concurrently, at its option, and
the exercise or enforcement of any one such right or remedy shall not bar or be
a condition to the exercise or enforcement of any other.
Governing Law/Jurisdiction. This Security Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the laws of the State of Minnesota. Debtor hereby consents to the personal
jurisdiction of the state and federal courts of the State of Minnesota in
connection with any controversy related to this Security Agreement, waives any
argument that venue in such forums is not convenient and agrees that any
litigation initiated by Debtor against Secured Party shall be venued in the
State or Federal District Courts of Minnesota.
Expenses. Debtor agrees to pay all costs, fees and expenses incurred by Secured
Party in the exercise of any right or remedy available to it under this Security
Agreement, whether or not suit is commenced, including, without limitation,
attorneys' fees and legal expenses of counsel for the Secured Party incurred in
connection with any appeal of a lower court's order or judgment, and any
appraisal or survey fees, completion costs, storage and transportation charges.
Successors and Assigns. This Security Agreement shall be binding upon and inure
to the benefit of the successors and assigns of Debtor and Secured Party.
Recitals. The above Recitals are true and correct as of the date hereof and
constitute a part of this Security Agreement.
Prior Security Agreements. The security interests granted by the Debtor to the
Secured Party under this Security Agreement are in addition to, and shall be
consolidated with, the liens and security interests granted by the Debtor to the
Secured Party under any prior security agreement, mortgage or other document
without affecting the lien, priority or effectiveness of those prior liens,
security interests and agreements.
Copy of Security Agreement as Financing Statement. The Secured Party may file a
reproduced copy or photostatic copy or other reproduction of this Security
Agreement as a Financing Statement.
Multiple Counterparts. This Security Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Debtor has caused the execution of this Security
Agreement by its duly authorized representative as of the date and year first
above written.
NORTH ATLANTIC TECHNOLOGIES, INC., a Minnesota corporation
By
Its
EXHIBIT A
TO AMENDED AND RESTATED SECURITY AGREEMENT
DATED MAY 9, 0000
XXXXXXX XXXXX XXXXXXXX TECHNOLOGIES, INC. a Minnesota corporation,
as Debtor and
FIRST BANK NATIONAL ASSOCIATION, national banking association,
as Secured Party
(1) Financing Statements on File Listing Debtor or Any Predecessor in Title as
Debtor: Financing statement nos. 1493993, 1620499, 1633780, 1692119, 1760055,
1760056, and 1771376, all filed with the Minnesota Secretary of State; financing
statement no. 1081993 filed with the Hennepin County Recorder's office; and
financing statement nos. 9201148 and 9501417 filed with the Xxxxxx County
Recorder's office.
(2) Location(s) of Equipment, Fixtures and Inventory: 0000 Xxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx; 000 Xxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx.
(3) Prior Names: None
(4) Permitted Liens: Only those liens set forth in section 7.2 of the Credit
Agreement.
